Comparative Reasoning in European Supreme Courts by Michal Bobek

COMPARATIVE REASONING IN EUROPEAN
SUPREME COURTS
This page intentionally left blank
Comparative Reasoning in
European Supreme Courts
MICHAL BOBEK
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
# M Bobek 2013
The moral rights of the author have been asserted
First Edition published in 2013
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2013938494
ISBN 978–0–19–968038–2
Printed and bound in Great Britain by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Contents
List of Abbreviations ix
Introduction 1
1. The Topic 1
2. The Approach 2
3. The Structure 4
4. Acknowledgements 5
PART I. THE F RAMEWORK

1. The Debate on Comparative Reasoning by Courts 9
1. A Historical View 9
1.1 A Novelty . . . 9
1.2 . . . Rising in Quantitative Terms 14
2. The Context of the Current Debates 16
2. Foreign Law in Courts: A Typology 19

1. Mandatory Uses of Foreign Law 21
1.1 Private International Law (Conflict of Laws) 22
1.2 Mutual Recognition, Extradition, and Other Compulsory
Considerations of Foreign Law 22
1.3 Directly Applicable Sources of Public International Law 23
1.4 Law of the European Union 25
1.5 Law of the European Convention on Human Rights 27
2. Advisable Uses of Foreign Law 28
2.1 Reference to a Parent International Law (and to EU Law
before Accession) 28
2.2 Laws Shared with or Taken from Other States 29
2.3 General Principles of Law 30
2.4 Intra-federal References 31
3. Voluntary Uses of Foreign Law 33
4. Non-mandatory Uses of Foreign Law and Legal Comparisons 34
3. Factors Influencing the Use of Comparative Arguments by Courts 36
1. Introduction: Of Abstract Models and Causality 36
2. General Factors 39
2.1 The Political and the Legal 40
2.2 The Size 41
2.3 The Age 42
3. Institutional Factors 44
3.1 Level of the Court in the Judicial Hierarchy 44
vi Contents
3.2 Analytical Back-up 46
3.3 Points of Reference, Networks, Databases 47
4. Procedural Factors 50
4.1 Cases Selection 50
4.2 Activity of the Parties 51
4.3 Amicus curiae 52
4.4 Costs of Litigation 53
5. Human Factors 54
6. Comparisons in Private and in Public Law 57
7. Constitutional Adjudication and Human Rights 60
PART II. THE P RACTICE

4. Prologue: The Method and its Pitfalls 67
1. What 67
2. How 69
3. Potential Inaccuracies 72
5. England and Wales 75

1. The Doctrine 76
1.1 Precedent 77
1.2 Statutory Interpretation 78
1.3 An Axiomatically Open System 79
2. Judicial Views 80
2.1 The Judicial Forum 80
2.2 Extra-judicial Fora 82
3. The Practice 84
3.1 The Common Law and the Rest of the World Gap 84
3.2 A Glance at the Appellate Committee of the House of Lords in 2009 87
3.3 The Supreme Court of the United Kingdom 90
4. An Evaluation: A Real Change or Just a Change in Taxonomy? 90
4.1 The Unity of the Common Law—from Appeals to Coordination 90
4.2 With Whom to Compare? 93
4.3 The Voluntary Commonwealth and the Compulsory Europe 95
6. France 97
1. A Note on the Judicial Style 97
2. The Doctrine 99
2.1 The Exegesis 100
2.2 Gény and the libre recherche scientifique 101
2.3 Saleilles and the Search for Objective Judicial Comparisons 103
2.4 The Modern Entry Points: Dynamic Interpretation,
Standards, and Gaps 104
4. The Practice 107
4.1 Indirect Evidence of Comparative Analysis 108
4.2 Conseil d‘Etat 111
Contents vii
4.3 Cour de cassation 113
4.4 Conseil constitutionnel 114
5. An Evaluation: Comparative Analysis as a Liberalizing Exercise? 116
7. Germany 120
1. A Note on the Structure of German Federal Jurisdictions 120
2. The Doctrine 122
2.1 The Comparative Law Debate 123
2.2 The General Rechtsdogmatik 127
3.1 The Judicial Forum 136
3.2 Extra-judicial Fora 138
4. The Practice 139
4.1 Bundesverfassungsgericht 140
4.2 Bundesgerichtshof 144
4.3 Bundesverwaltungsgericht 147
5. The Overall Picture: The Pre-eminence of Scholarly Comparisons 148
8. Czech Republic 152

1. The Doctrine 152
3. The Practice 157
3.1 Ústavní soud 157
3.2 Nejvyšší soud 162
3.3 Nejvyšší správní soud 164
4. Explaining the Gaps 168
4.1 Comparative Law without a Theory 168
4.2 Judicial Differentiation and Institutional Mentality 172
9. Slovakia 174
2. The Practice 178
2.1 Ústavný súd 178
2.2 Najvyšší súd 185
3. The Difference: Common History Does Not Mean
the Same Present 189
10. An Empirical Epilogue: Quantity, Quality, and Beyond 192

1. The Quantity 192
2. The Quality 196
3. The Theories 197
PART III. THE APPRAISAL

11. Comparative Reasoning by Courts: The Theoretical Playing Field 203
1. Judicial Ideologies and Judicial Decision-making 204
2. The Need for Extra-systemic Inspiration 205
viii Contents
2.1 Gaps in Law 206
2.2 Societal Change 208
3. Judges as Legislators 210
4. The (Positivistic) Limits of Comparative Reasoning by Courts 212
4.1 Persuasive, never Binding 213
4.2 Subsidiary, never Controlling 215
4.3 Additional, never Free-standing 216
4.4 Defendable and Selective, not Exhaustive 217
5. Summary: Of Old and New Hats 217
12. On Authority, Citation, and Silence 220

1. The Authority and its Display in a Judicial Decision 220
1.1 The Types of Authority: The Rational and the Religious 220
1.2 The Discovery and its Representation 222
1.3 The Styles of the Representation 223
2. The Meaning of a Legal Citation 225
3. To Read and/or to Quote? 227
4. The Advantages of Silence 230
4.1 The Institutional and the Substantive Legitimacy 230
4.2 The Transparency Trap 233
4.3 Transparency and Other Values 234
13. Comparative Reasoning by Courts: Some Classical Points Revisited 237

1. The Legitimacy 237
2. The Methodology 240
2.1 The Challenges: Of Cherries and Misunderstandings 240
2.2 Blurred Methodology or Blurred Yardsticks? 242
3. The Purpose 245
4. The Predictability 249
14. The Deviations: Political Over- and Non-comparisons 252
1. Politics of Comparisons 252
2. Over-comparisons 255
2.1 The Nature of a Legal Transition 255
2.2 Judiciary in a Legal Transition 257
2.3 Methodological Aspects: External Inspiration and Authority 260
2.4 Institutional Aspects: From Revolutionary Tribunals to
Regular Supreme Jurisdictions 265
2.5 Of Law Importation and Temporal Colonies 269
3. Non-comparisons 272
3.1 Superiority, Exclusivity, and Political Closures 272
3.2 The American Deviation 274
Conclusions 282
Select Bibliography 288

Index 307
List of Abbreviations
ABGB Allgemeines Bürgerliches Gesetzbuch (Austria)
AG avocat général
BAG Bundesarbeitsgericht (Germany)
BFH Bundesfinanzhof (Germany)
BGB Bürgerliches Gesetzbuch (Germany)
BGH Bundesgerichtshof (Germany)
BGHZ Entscheidungen des Bundesgerichtshofes in Zivilsachen (Germany)
BSG Bundessozialgericht (Germany)
BVerfG Bunderverfassungsgericht (Germany)
BVerfGE Entscheidungen des Bundesverfassungsgerichts (Germany)
BVerwG Bundesverwaltungsgericht (Germany)
BverwGE Entscheidungen des Bundesverwaltungsgerichts (Germany)
CA Court of Appeal (England and Wales)
CC Conseil constitutionnel (France)
CdC Cour de cassation (France)
CdE Conseil d’Etat (France)
CdG commissaire du gouvernement
CE Central Europe(an)
CNS Nejvyšší soud (Czech Republic)
CNSS Nejvyšší správní soud (Czech Republic)
CÚS Ústavní soud (Czech Republic)
Convention European Convention on Human Rights
DDR Deutsche Demokratische Republik (former East Germany)
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EFTA European Free Trade Area
EU European Union
GG Grundgesetz (Germany)
HL House of Lords (United Kingdom)
ILO International Labour Organisation
NSA Naczelny Sąd Administracyjny (Poland)
RP rapporteur public
SNS Najvyšší súd (Slovak Republic)
SÚS Ústavný súd (Slovak Republic)
TC Trybunał Konstytucyjny (Poland)
TEC Treaty Establishing the European Community
TEU Treaty on the European Union
TFEU Treaty on the Functioning of the European Union
UKHL Appellate Committee of the House of Lords (United Kingdom)
UKSC Supreme Court of the United Kingdom
USSC United States Supreme Court
ZGB Zivilgesetzbuch (Switzerland)
Introduction
1. The Topic
Doing comparative law in courts today is a tricky business. A practice that has been
used by adjudicators for centuries and for decades found itself outside of any
sustained scholarly attention has been witnessing a veritable boom in interest in
the last two decades or so. The current scholarly debate includes legions of articles,
typically with words like ‘dialogues’, ‘comparative’, ‘transnational’, ‘global’, ‘com-
munity’, ‘rise’, ‘new order’, and so on in their titles. These articles frequently pick
up on a few cases, commonly from the area of human rights adjudication, and on
the basis of a few often ornamental references to foreign cases contained in these
decisions conclude that courts are talking to each other. They also axiomatically
postulate that the use of foreign law by courts is a new phenomenon and that the
number of references to foreign law is steadily rising. Eventually, some of these
writings even announce that this new phenomenon signifies the twilight of the
positivistic Kelsenian or Hartian tradition and trumpet the birth of something new,
with, typically, a new terminological label attached thereto.
This book puts these claims to the test in relation to supreme national jurisdic-
tions (ie supreme and constitutional courts) in Europe today. It has two elements:
empirical and theoretical. The empirical research assesses the practice of the
supreme jurisdictions in England and Wales, France, Germany, the Czech Re-
public, and Slovakia in relation to the quantitative aspects of their use of compara-
tive arguments. The theoretical element comprises two levels: first, at the level of
the national legal systems studied, the mainstream doctrinal views concerning the
role and legitimacy of comparative reasoning by the courts are analyzed. Second,
the national doctrines serve as the starting point for determining the common
denominator for a positivistic approach to comparative reasoning by courts. Both
elements, practical as well as theoretical, are then used to discern reasons and
justifications for the current practice of the use of comparative arguments in the
highest courts across Europe.
The aim is to close the gap between the mainstream scholarly writings on the
issue of the use of comparative arguments by the courts and the actual current
practice. National judges, who might wish to draw some inspiration from compara-
tive materials, find it difficult to identify a reasonable ground (and theoretical
foundation) for judicial comparisons in today’s literature. Doing comparative law
in courts means navigating between the proverbial Scylla and Charybdis: the Scylla
2 Introduction
of militant comparativists or the global transnational legal prophets, who suggest
that there must be ‘dialogues’ in every case, and the Charybdis of claims that
comparative reasoning should never be employed by courts, either because the
judges always get it wrong anyway (the soft version) or because they lack any
constitutional legitimacy to do so and such practice is therefore undemocratic (the
hard version).
Scholarly contributions that often just restate the somewhat odd and for Europe
not entirely relevant issues raised in the currently fashionable US debate on foreign
law in courts fail in both of the two essential tasks legal scholarship arguably ought
to provide. First, it should seek to give a faithful account of the practice, to classify,
and to systemize. Secondly, once having ascertained the empirical basis, it may
formulate some normative statements, which can provide for guidance in future
cases.
Such a vision of the role of the legal scholarship might be called ‘legalistic’,
‘formalistic’, ‘black-letter-focused’, or any other disdainful label the respective legal
tradition works with. However, that it is precisely what is lacking in the current
debate on the use of comparative arguments in courts. The absence of any sober,
practice-oriented, and constructive groundwork may be said to be a considerable
shortcoming of the idealist and purely normative global-community-of-courts
debate. Moreover, very little attention is also paid to the fact that judicial work
takes place under considerable constraints, relating not just to time, resources,
language barriers, etc, but above all to the national legal tradition and the expected
format of the judicial deliberation process and its product, the decision. One may
thus encounter profound studies on the costs and benefits of engaging in judicial
dialogues or structural/institutional/political analyses of the process in a compara-
tive (constitutional) perspective, without the author, who is about to argue about
the depth of the discursive choices of courts as political actors, being aware of the
fact that there are statutory requirements and conventions as to how a judicial
decision in a legal culture has to look; that there is a centuries-long tradition of
acceptable judicial method in statutory interpretation and/or work with previous
case law; and that any decision failing to meet these standards will be quashed on
appeal/cassation/via a constitutional complaint. In short, before developing grand
theories, it may be useful to look at what is genuinely going on and why.
2. The Approach
This book offers no grand theories. It designs no new groundbreaking approaches

or paradigms. It just observes, compares, and seeks to systematize within the
existing theoretical frameworks. The appropriate methodological labels could
thus be said to be comparative, descriptive, empirical, and, on the level of overall
philosophical approach, realist and pragmatic. The work is inductive. It has no
prior preconceptions or normative visions as to how judges should approach foreign
law. Instead, it looks at what the judges are doing and whether that activity can be
conceptualized within the present theoretical and dogmatic categories of a given
The Approach 3
legal system. On the basis of these studies, a common (positivistic) ground for
judicial use of foreign non-mandatory arguments is identified, which is able to
explain what judges are doing in terms of comparative reasoning and why they are
doing it.
At the same time, however, it is suggested that such an approach is novel in many
ways. First, the book integrates both an empirical and a theoretical study of the
phenomenon of the judicial use of comparative law, put into the historical and
cultural context of the jurisdictions studied and the overall European evolution. In
one volume, empirical questions (who refers to whom, how often, and how) are
integrated with theoretical ones (how does the respective legal system justify
recourse to foreign, extra-systemic arguments), thus achieving a complex picture.
Secondly, the approach is deeply comparative, focusing on how and why various
systems compare. In all countries studied, the author relied on primary sources
(judgments, scholarly writings, etc) in the original languages. Added to these five
systems were selected materials relating to further European legal systems, such as
Poland, Hungary, Italy, and Switzerland. These systems are not discussed in the
form of a free-standing study. Their experience and scholarly works emerging from
them are nonetheless taken into consideration within the general parts of the
argument. It may be thus suggested that the overall picture presented offers a
truly European outlook.
At the same time, the study has a distinct Continental touch. It focuses mainly
on four Continental civil jurisdictions (France, Germany, the Czech Republic, and
Slovakia), with the English case study functioning, in several aspects, as a counter-
example. The theoretical chapters in the third part of the book can also be said to be
strongly influenced by Continental legal theory (in particular German and French,
but also Swiss), which chiefly seeks to conceptualize the operation of a system of law
based on codes and statutes. In contrast, the mainstream up-to-date focus with
respect to the use of comparative arguments by courts has been on common law
jurisdictions around the world; civilian legal systems have so far been out of the
limelight. The European Continental experience in engaging with foreign inspir-
ation, especially if viewed in its historical evolution, provides instructive parallels
but also contrasts with the recent debates on the same phenomenon in the United
States and other former British colonies around the world.
Thirdly, the book puts the assembled data on comparative reasoning in the
respective courts into the wider context of the normal function of the jurisdictions
studied, quantitatively as well as qualitatively. It therefore gives a perhaps somewhat
dull but certainly a more realistic picture of the actual practice of comparative
reasoning by courts than the discussion of just a few isolated cases torn out of the
context of the normal day-to-day judicial function of a court within a legal system.
In providing such a picture, the author was able to draw on his past practical
experience as legal secretary to the Chief Justice at the Supreme Administrative
Court of the Czech Republic, and head of the Research and Analytical Department
at the same court. This meant not only being the person entrusted with entertain-
ing foreign relations of a supreme jurisdiction, but also carrying out a number
of comparative studies commissioned by judges for their decision-making and
4 Introduction
discussing such inspiration in judicial deliberations. Experience in such a privileged
position, together with the ability to rely on judicial contacts and networks over
Europe, access to judges for conducting interviews, and access to materials, allowed
unique insider knowledge to be assembled and evaluated in the book.
Finally, the overall approach sought was nonetheless a detached and critical one.
This book seeks neither to praise nor to censure, but to understand how and why.
Such an approach is crucial, surely once a substantial part of the current discussion
on comparative law in courts tends to be influenced by the author’s political
convictions as to how ‘international’ or ‘open-minded’ judges should be, rather
than by the real state of affairs.
3. The Structure
The book is subdivided into three parts. The first part introduces a framework for
the judicial reference to foreign law. The first chapter provides a historical and
contextual introduction into the debates on comparative law in courts. It critically
reviews the two key assumptions of the current debates, unreservedly asserted in
most of the recent writings in a mantra-like style: that the use of comparative
inspiration by courts is a novelty and that its frequency is rising.
The second chapter maps the landscape of various types of the foreign in domestic
courts. It looks into the domestic normative authority a national judge has for
considering foreign law in various types of cases. On the basis of this criterion, the
chapter distinguishes three types of the use of the foreign law before national courts:
mandatory uses, advisable uses, and voluntary uses. The particular interest of this
study lies in the latter two categories, namely advisable and voluntary uses, which
for ease of reference are conflated into one category of non-mandatory references.
The third chapter is concerned with the factors influencing the quantity and the
quality of the use of the non-mandatory foreign inspiration in the process of
domestic adjudication. The factors include a range of general, institutional, pro-
cedural, and human factors. In the closing part of the chapter, two subject-specific
factors are discussed. First, does it have any impact on the potential use of foreign
inspiration whether the legal issue in question pertains to the area of private or
public law? Second, is it of consequence whether the case deals with constitutional
issues and/or human rights?
The second part of this book contains five country studies: on England and
Wales, France, Germany, the Czech Republic, and Slovakia. The case studies are
introduced by a short chapter dealing with methodological issues (chapter four). It
sets out the research design with respect to the case studies and discusses the
potential inaccuracies emerging. The second part is closed by a chapter evaluating
the basic quantitative as well as qualitative findings (chapter ten). It also provides the
starting point for the theoretical discussion in part three. Both of these shorter
chapters thus serve as gates: chapter four for opening the case studies and chapter
ten for closing them.
Acknowledgements 5
The aim of the third part is to systemize, to explain, and to offer a theoretical
common denominator for the practice of the systems studied. Chapter eleven
defines the theoretical playing field for the judicial use of comparative inspiration
from the point of view of the positivistic legal theory distilled from the legal systems
studied. It suggests that the use of extra-systemic, non-mandatory arguments is
warranted in the case of judges behaving as de facto legislators. These are instances
where domestic law is either lacking or it is considered to be outdated and in need
of a societal update. Eventually, the chapter also seeks to outline the positivistic
limits to the external appearance of comparative arguments used by courts in
Europe today.
Chapter twelve deals with the impact a particular legal style has on the represen-
tation of foreign inspiration in a judicial decision. It conceptualizes a range of
strategies a judge might be pursuing by reading and/or quoting foreign materials. It
also tries to explain the reasons for judicial silence, ie why it might be better, for
various reasons, not to (fully) disclose the comparative inspiration in a judgment.
Chapter thirteen discusses, against the background of the theoretical conclusions
of the previous chapters, four of the frequently levied objections against the judicial
use of foreign inspiration: its legitimacy, methodology, purpose, and the lacking of
predictability. It explains how and why the judicial use of comparative inspiration
and/or invoking of foreign authority differ from a scholarly comparative study and
where the proper yardsticks for judicial uses of foreign inspiration ought to lie.
Finally, chapter fourteen deals with the deviations: with the odd cases of over-use,
under-use, or non-use of comparative inspiration in certain systems at certain times.
It maps how and why the default tolerant openness towards the use of comparative
inspiration might for political reasons become distorted, and the legal domain
pushed by the political domain either towards over-using or non-using comparative
inspiration in judicial decisions. The legal transition in post-communist Central
Europe provides an example in the former category; the current US debate on the
use of foreign law in the US courts an instance of the latter.
4. Acknowledgements
This book was born over many years at three different institutions: the European
University Institute in Florence, the Supreme Administrative Court of the Czech
Republic, and the Oxford University Institute of European and Comparative Law.
An earlier version of the argument was defended as a doctoral dissertation in March
2011 at the European University Institute (EUI), where it received the 2012
Mauro Cappelletti Prize for the best work in comparative law. Since then, the
argument has been revisited and updated in the course of an Anglo-German Post-
Doctoral Fellowship held at the Institute of European and Comparative Law,
University of Oxford.
Many thanks are due. Jacques Ziller and Stefan Vogenauer were kind and helpful
mentors at the EUI and Oxford respectively. Josef Baxa, the president of the Czech
Supreme Administrative Court, introduced me, with kindness and patience, to the
6 Introduction
intricacies of real judicial life and thinking. John Bell, Bruno de Witte, Wojciech
Sadurski, and Alec Stone Sweet gave me valuable suggestions at various stages of
work on this book. Jan Komárek, David Kosař, Zdeněk Kühn, François-Xavier
Millet, Pavel Molek, Jiří Přibáň, Constanze Semmelman, and Jan Štiavnický read
and kindly commented on the various chapters or the whole manuscript.
I am grateful to a great number of people who offered me their help, time, and
hospitality at their home institutions in order to collect materials, conduct inter-
views, or to discuss the issues addressed in this book: Eva Babiaková, Jana Baricová,
Igor Belko, Ivan Rumana, Petra Žilecká (Najvyšší súd, Slovakia); Juraj Babjak, Ján
Luby, Lajos Mészáros, Ladislav Orosz (currently or formerly of the Ústavný súd,
Slovakia); Agata B Capik (Université du Luxembourg); Marian Stasiak (Centrum
Europejskie Natolin, Warsaw); Boleslaw Banaszkiewicz, Stanislaw Biernat, Marcin
Wiacek, Kamil Zaradkiewicz (currently or formerly of the Trybunał Konstytucyjny,
Poland); Maciej J Nowakowski, Piotr Wróbel (Naczelny Sąd Administracyjny,
Poland); Katarzyna Gonera (Sąd Najwyższy, Poland); Tomáš Langášek, Ivo Pospí-
šil, Eliška Wagnerová (currently or formally of the Ústavní soud, the Czech
Republic); Michal Mazanec, Aleš Roztočil, Vojtěch Šimíček (Nejvyšší správní
soud, the Czech Republic).
Finally, this book was written and completed thanks to the generosity of the
European University Institute which, notwithstanding the regrettable fact that my
country of origin, the Czech Republic, keeps persistently ignoring the existence of
the EUI, opened its doors to me and found internal funds for financing my doctoral
research. The same thanks go to the Volkswagen Stiftung, which funded my Anglo-
German Post-Doctoral Fellowship at the University of Oxford.
PART I
THE FRAMEWORK
1
The Debate on Comparative
Reasoning by Courts
Over the last two decades, increasing attention has been paid to an allegedly new
phenomenon: the judicial use of foreign law for solving purely domestic cases.1 It
comes under various names: judicial dialogues, judicial conversations, judicial
globalization, a global or a transnational community of judges, the transjudicial
communication, the global legal system, and many others. Particular attention is
being paid to the area of constitutional law and human rights, where some authors
talk of global or world constitutionalism, comparative constitutional federalism, a
new transnational constitution, etc.
The purpose of this chapter is not to carry out a review of the literature. Such a
task would be, considering the vast amount of recent writings on the issue,
impossible. Instead, in the form of a historical introduction, two assumptions
commonly asserted in a mantra-like style without further evidence in the scholarly
writings dealing with judicial uses of the comparative will be critically examined:
namely that the use of foreign law by courts is a new phenomenon and that it is
rising. These assertions will then be put into a broader context of the evolution of
comparative law and legal theory over the last few decades in the search for an
explanation why this ‘new phenomenon’ has recently gained such scholarly
attention.
1. A Historical View
1.1. A Novelty . . .
Judicial use of comparative reasoning is hardly a new phenomenon. What is
relatively new is the field of law (or a method in law2) which we now label
1 The books on this topic focusing on the European context published in the last years include, inter
alia: U Drobnig and S Van Erp (eds), The Use of Comparative Law by Courts (Kluwer 1999); G Canivet and
others (eds), Comparative Law before the Courts (BIICL 2004); B Markesinis and J Fedtke, Judicial Recourse
to Foreign Law: A New Source of Inspiration? (UCL Press 2006); B Markesinis and J Fedtke, Engaging with
Foreign Law (Hart 2009); A Le Quinio, Recherche sur la circulation des solutions juridiques: le recours au droit
comparé par les juridictions constitutionnelles (Fondation Varenne 2011).
2 A question which appears to have plagued older comparative law scholarship—see, eg: HC
Gutteridge, Comparative Law (2nd edn, CUP 1949) 1–5. Later, the same issue was extensively
10 The Debate on Comparative Reasoning by Courts
comparative law. What is surely not new is looking into someone else’s (legal)
backyard in order to gain inspiration for solving domestic (legal) problems.
In the legal history of the European Continent of the last millennium, one could
roughly distinguish three periods of the visions of the foreign and the engagement
with it in the process of adjudication. The first was the medieval period before the
birth of nation states, in which law was an open system. Laws were personal and to
some degree a matter of choice, not based on exclusivity and territorial coercion.
The second period was defined by two moments: the birth of the nation state from
the 17th century onwards marked its beginning and the full nationalization of the
law by national codifications of the late-18th and early-19th century its end. In this
period, national legal systems were gradually created, but they still kept a semi-open
character, with some sort of shared allegiance to the common. Finally, the third,
in a way perhaps the still current period, started with modern codifications. With
their entry into force, national legal systems had sealed themselves off definitively,
from the common whole (the ius commune) as well as from the others (other
national states).
As far as the migration of medieval laws in the first of the outlined periods is
concerned, it is naturally arguable whether before the creation of nation states3 and
the ensuing nationalization of the law, one can talk of any legal comparisons at all.
Comparative law, as perceived today, is linked with (or defines itself in opposition
to) the notions of territoriality, borders, and the exclusivity of the laws of a nation
state. These categories were born only gradually in the course of the late-17th and
the 18th century. It could be thus suggested that one cannot talk of any compara-
tive law before this period.4
However, if one perceives of legal comparison in functional terms, ie as a mental
process of looking for similarities or differences between legal regimes, irrespective
of the fact whether or not such regimes are backed-up by territorial exclusivity and
state coercion, then the medieval period was the golden age of practical and applied
comparative studies. It was before the legal system became nationalized and
intolerant vis-à-vis the others that one might observe a true migration of legal
ideas, following a completely different philosophical pattern from that of today.
The medieval and earlier visions of legal authority were quite different from
the modern conception of law. They accepted and operated with mutually
discussed by a great number of socialist or Marxist authors of comparative law as, for them, the correct
taxonomy of the ‘Socialist legal science’ was valued more than the content of the science itself—see, eg:
V Knapp, Velké právní systémy: Úvod do srovnávací právní vědy [The Grand Legal Systems: An Introduc-
tion into Comparative Legal Science] (CH Beck 1996) 7–8. The more pragmatic part of the scholarship
suggested either that it really does not matter, what sort of label is put on the practice, or that
comparative law is both a method of study as well as a body of substantive knowledge gained through
the method. See eg: M Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of
the Twentieth Century’ (2002) 50 AJCL 671, 684.
3 See generally: E Gellner, Nations and Nationalism (2nd edn, Blackwell 2006) 1–7 and 38–51.
4 Compare: LJ Constantinesco, Rechtsvergleichung: Band I (Carl Heymanns 1971) 71–2, who states
that the field of comparative law is limited to conscious comparisons of clearly distinct and mutually
exclusive national legal orders, thus placing the birth of the field of study in the late-19th century.
A Historical View 11
non-exclusive personal as well as territorial plurality of laws, with often just optional
jurisdiction dependent upon choice.5 All was, however, perceived as creating one
whole, as long as no claim to the ultimate authority in one particular case was
voiced by the representative of either of the systems involved.6
Pre-national law was an open legal system, tolerant of the other and ready to take
over and incorporate.7 Laws were not tied to a sovereign will of one single
legislator,8 as there would typically be no single legislative centre. Laws were
there for everybody, ‘free-ware’ allowed to move and to be adapted.9 The early
Middle Ages witnessed a flowering of comparative study of the law. As Maurizio
Lupoi puts it:
The kings of Hungary and Sicily, for example, encouraged foreigners to enter their
kingdoms so that they might learn about their law and ascertain if it contained
anything worth introducing into their own systems.10
Thus, with different philosophical visions,11 functionally comparative exchange
was very strong in medieval Europe. Competitive plurality in law creation as well
as law application was embedded in the system.12 Moreover, as the develop-
ment of the law before the advent of modern legislative activity and the ensuing
claims for the supremacy of legislative power was primarily advanced by adjudi-
cation, comparative borrowing and copying was also necessarily carried out in the
5 On the mutation from the medieval (non-exclusive) perception of law into a modern (exclusive)
legal system, see generally: HJ Berman, Law and Revolution: the Formation of the Western Legal
Tradition (Harvard University Press 1983) 273ff or AJ Arnaud, Pour une pensée juridique européenne
(Presses universitaires de France 1991) 46ff.
6 Such as later claims for the ultimate authority voiced by the Pope and the German Holy Roman
Emperors respectively in the second half of the 11th century, which Berman (n 5) 94ff called the ‘Papal
Revolution’ in law.
7 See M Lupoi, The Origins of the European Legal Order (CUP 2000) 429–36 or R Lesaffer,
European Legal History: A Cultural and Political Perspective (CUP 2009) 168–9, 269ff, and 277ff.
8 The connection between state and law was not a necessary one; applicable laws were found in
texts largely independent of political powers—see eg: N Jansen, The Making of Legal Authority: Non-
legislative Codifications in Historical and Comparative Perspective (OUP 2010) 20ff, 41ff.
9 Lupoi (n 7) 430 gives examples of instances in which laws collected or promulgated by one king
would be amended (and the amendments accepted) by a different king in a different country or by the
Pope, thus freely adding to the existing corpus of the laws in question.
10 Lupoi (n 7) 431 further mentions examples of magisterial comparative works, mostly by monks,
from the period between the 9th and 11th century, together with extensive collections of ‘foreign’ law
assembled in various monasteries and schools.
11 For a readable introduction to the different outlook, see K Bezemer, What Jacques Saw:
Thirteenth Century France through the Eyes of Jacques de Revigny, Professor of Law at Orleans (Kloster-
mann 1997).
12 In the process of adjudication in both dimensions: as to the applicable law and the persons
applying it. The adjudicator was selected of the basis of his knowledge of the law as such, not on the
basis of his detailed, technical knowledge of local laws. A literary example in this respect is provided by
Portia disguised as the learned Doctor Balthasar in the Merchant of Venice, pretending to be a doctor of
laws from Rome, sent by a lawyer from Padua, Bellario, to judge in Venice a dispute between two
merchants. At that time, however, the three cities were independent city states with different legal
systems, as were laws applicable to various types of citizens of Venice itself.
process of adjudication. Such borrowings are evidenced on the macro13 as well as
micro14 level.
Following the Peace of Westphalia, nation states gradually emerged. But it took
almost two more centuries before law became nationalized in the late-18th and the
beginning of the 19th century. This second period was thus marked by certain
semi-openness to foreign inspiration. The emerging nation states started to legislate
more and more. Their legislative activity was, however, originally limited to specific
areas of administration and state-function. The common whole, the ius commune,
created by the newly established class of academic lawyers from the 12th century
onwards, nonetheless still functioned as the overreaching subsidiary reference
system, against which local systems would be compared and which could be applied
in situations where local law was lacking or disputed.15
Even in this period, there was still a lively interest in the others. In contrast to the
early medieval period, there was now also the established corpus of the ius
commune, which provided for an additional avenue of mutual exchange. Judicial
decisions interpreting the ius commune in the various states could freely cross
borders and were regarded as authority in another system. Judges deciding cases,
for instance, in the Netherlands would feel as equally authoritative decisions
coming from the various German states, Northern France, Switzerland, Scotland,
and elsewhere.16
The national codifications of the late-18th and the early-19th century put an end
to such practice. The law on the European Continent became fragmented by great
national codifications. These codifications definitively parted from the medieval
vision of the law. Instead, a unique and supreme legislative centre was created,
which proclaimed and enforced its own territorial exclusivity.17 The attention of
lawyers was turned towards the new national codes which needed to be filled with
content. The same also applied to the judiciary. Implicitly or sometimes even
13 Macro-level examples, concerned with the development of entire legal systems, are given, for
instance, by A Watson, Legal Transplants: An Approach to Comparative Law (2nd edn, The University
of Georgia Press 1993) chs 5–14; W Hug, ‘The History of Comparative Law’ (1931–1932) 45
Harvard LR 1027; CK Allen, Law in the Making (7th edn, Clarendon 1964); JP Dawson, The Oracles
of the Law (The University of Michigan Law School 1968); W Finkentscher and others (eds),
Entstehung und Wandel rechtlicher Traditionen (Alber 1980).
14 An example of a micro-level case study of the use of comparative inspiration in ecclesiastical
adjudication in Sweden between the 11th and the 13th century is provided, for instance, by D Strauch,
‘Zur Rechtsfortbildung im mitteralterlichen Schweden’ in G Köbler (ed), Wege europäischer Rechts-
geschichte (Peter Lang 1987).
15 See generally: R Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian
Tradition Today (OUP 2001) 2ff or H Coing, ‘Die ursprüngliche Einheit der europäischen Rechtswis-
senschaft’ in H Coing, Gesammelte Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: Band 2
(Klostermann 1982). Coing further demonstrates (in ‘Das juristische Vorlesungsprogramm der Uni-
versität Padua im XVII. und XVIII. Jahrhundert’, in the same volume) how the European unity of legal
thinking gradually split on the changes made in the curricula in European universities in the 17th–19th
centuries.
16 P Godding, ‘Jurisprudence et motivation des sentence, du moyen âge à la fin du 18e siècle’ in
C Perelman and P Foriers (eds), La motivation des décisions de justice (Bruylant 1978) 58 or E Ehrlich,
Freie Rechtsfindung und freie Rechtswissenschaft (Scientia 1973) 15–16.
17 See generally: Lesaffer (n 7) 356ff or S Romano, LÓrdre juridique (Dalloz 1975) 77ff.
explicitly, the sovereign legislature sought to reaffirm its own exclusivity in

the process of adjudication, vis-à-vis any other potential sources of influence,
domestic18 or foreign.19
The birth of modern comparative law by the end of the 19th century is today
commonly portrayed as an effort to recover from the blow that the nationalization
of the law at the beginning of the 19th century gave to the idea of a common
whole.20 One of the key roles (if not the key role) of comparative law was to keep
alive the belief that law is an international science, even after the legal universe on
the European Continent became divided up along national lines.
However, even in the times in which legal science seemingly ‘degenerated into
the jurisprudence of states’, which appeared to be ‘a discouraging and unseemly
posture for a science’,21 comparative study of laws did certainly not die out. Its
quantity as well as purposes and agents have, however, changed. With the judicial
power subdued and made entirely dependent on the legislature, at least formally, it
was the legislative use of foreign models and the législation comparée which became
the centre of scholarly attention. However, judicial use of comparative inspiration
never vanished. It just disappeared from the limelight, together, in fact, with judges
themselves. Conversely, with the gradual re-evaluation of the judicial function
especially in the second half of the 20th century, the focus turned again to what
judges do and where do they draw their inspiration from.
To claim, against such historical background, that the use of foreign models and
examples in the process of adjudication is a new phenomenon, is somewhat short-
sighted. When looking into legal history, not just on the European Continent, it
appears, with just slight exaggeration, that the real problem is rather the reverse one: to
find examples of legal solutions which were not taken from elsewhere or periods in
which engaging with others and copying from them was not the rule but an exception.
18 By banning the citation of any other source than national statutes (France) or banning the
citations of scholarly works in judicial opinions (Germany, Italy)—further eg: S Vogenauer, ‘An
Empire of Light? Learning and Lawmaking in the History of German Law’ (2005) 64 CLJ 481,
491–2 or A Braun, ‘Professors and Judges in Italy: It Takes Two to Tango’ (2006) 26 OJLS 665,
670ff.
19 By banning the citation of any authority of foreign origin, such as Art 3 of the Civil Code of Swiss
Kanton Waadt of 1819. It read: ‘Il est défendu aux Juges de citer, comme motif de leur jugement, une
loi ou une autorité étrangère, pout expliquer le présent Code, ou pour y suppléer.’ Similar provisions
were also contained in Art 5 of the Code civil of Canton Neuenburg of 1853 or in Art 14 of the
Allgemeines bürgerliches Gesetzbuch of the Canton Aargau of 1847. Quoted from A Meier-Hayoz,
Der Richter als Gesetzgeber (Juris 1951) 101, 106.
20 It is not without historical irony that the writers of the early-19th century, who would be
worshipped today as the progressive forerunners or early advocates of comparative law (Jhering,
Feuerbach, and others—see, eg: K Zweigert and H Kötz, Einführung in die Rechtsvergleichung (3rd
edn, Mohr Siebeck 1996) 45 and 51–2) were, from the point of view of their time, representing the
conservative stream which longed for the times of (what at the time was perceived to be) outdated,
interpolated, and often conflicting versions of Roman law. Further eg: H Mohnhaupt, ‘Universal-
geschichte, Universal-Jurisprudenz und rechtsvergleichende Methode im Werk P.J.A. Feuerbachs’ in
H Mohnhaupt, Historische Vergleichung im Bereich von Staat und Recht: Gesammelte Aufsätze (Klos-
termann 2000).
21 Jhering’s famous statement from the ‘Geist des römischen Rechts auf den verschiedenen Stufen seiner
Entwicklung’, as translated by Tony Weir in K Zweigert and H Kötz, Introduction to Comparative Law
(3rd edn, Clarendon 1998) 46.
1.2. . . . Rising in Quantitative Terms

Use of foreign inspiration in the interpretation of domestic law is thus hardly new.
But is it, as most of the writings concerning the use of foreign law in judicial
decision-making readily assume, rising?
No truly universal trend can be detected in this respect. In some legal systems,
the use of comparative reasoning might currently be rising. In others, however, the
quantity of comparative inspiration remains roughly the same. In yet others, it may be
in decline. Historically, the need for comparative inspiration varies, depending on the
particular stage and needs of a given system in a given period. Newly established
or transforming legal systems frequently use comparative reasoning as a source of
inspiration and external authority. In such systems, the actual need for comparative
inspiration as well as more pragmatic comparative rhetoric will indeed be on the rise.
In others, more stable and mature legal systems, the need for external inspiration is
likely to be stable. In yet others, perhaps too stable systems, germs of future stagnation
might evidence themselves by the decline in the perceived need to engage with others:
frequently for political reasons, a system starts believing in its own self-sufficiency,
exclusivity, and uniqueness. The amount of comparative inspiration in such a system
is likely to be in decline.
The case studies carried out in the second part of this book demonstrate that one
cannot state that judicial use of foreign law is ‘globally’22 rising. In some jurisdic-
tions, such as Germany, the use of comparative reasoning by courts has been
roughly stable. Bernhard Aubin, for instance, carried out a diachronic study in
which he contrasted the foreign referencing practice of the German Imperial Court
(Reichsgericht), which was the German supreme federal jurisdiction up until the
Second World War, with its successor after the Second World War, the Federal
Supreme Court (Bundesgerichtshof ). He came to the conclusion that between 1948
and 1970, the Bundesgerichtshof referred to foreign law only seven times. The
Reichsgericht, on the other hand, referred to foreign law in a comparable period
between 1908 and 1928 in total seventeen times.23 A recent study of the compara-
tive practice of the Bunderverfassungsgericht from 1951 until 2007 showed a fairly
constant (and in total minimal) use of comparative reasoning by the highest
German constitutional jurisdiction.24
22 Unless ‘global’ is not supposed to mean just ‘selected common law jurisdictions’. In this respect,
one may observe a striking inflation of notions today, especially in the area of constitutional law.
‘Comparative constitutionalism’ tends to be used for the juxtaposition of several selected common law
jurisdictions (the USA, Canada, South Africa, Australia, and/or the UK). Once one adds at least a few
translations of some cases from Germany, France, or Israel, the same study or university course
suddenly becomes ‘global constitutional law’. Critically on the (mis)use of the term ‘globalization’ in
law teaching, see W Twining, ‘Diffusion and Globalisation Discourse’ (2006) 47 Harvard ILJ 507.
23 B Aubin, ‘Die rechtsvergleichende Interpretation autonom-internen Rechts in der deutschen
Rechtsprechung’ (1970) 34 RabelsZ 458, 463–71.

24 AM Cárdenas Paulsen, Über die Rechtsvergleichung in der Rechtsprechung des Bundesverfassungs-
gerichts: Analyse der Heranziehung ausländischer Judikatur (Dr Kovač 2009) 181–2. Further discussed
in ch 7, section 4.1.
Central European post-communist countries, such as the Czech Republic or

Slovakia, offer a similar scenario. The initial boom of comparative inspiration after
the political change in these countries has perhaps already passed away. To make
any conclusive statements at this stage is nonetheless premature; however, should
these countries follow the German example, the use of comparative inspiration is
likely to become less frequent.25
The only system studied in this book in which one could genuinely speak of
perhaps a growing tendency in the judicial recourse to foreign law is England and
Wales. This is with one caveat, however, which is explained in detail further in the
case study:26 namely that the comparative referencing practice happens almost
exclusively within a select few countries of the British Commonwealth of Nations
and the USA (federal as well as state laws), ie those countries previously bound
within the same legal system. It is thus not necessarily the engagement between
these systems that is new, but the fact that their internal relationship changed from
hierarchy and appeals to mere coordination and persuasiveness.
To state categorically that there is a global rise in judicial use of foreign law is
thus problematic, to say the least. One could even argue that, taking into account
the means of communication and the accessibility of information today, the relative
use of foreign law by courts is very low or even in fact diminishing. In contrast to
the ‘pre-virtual’ age, there is no need for the information to be obtained by
assiduous copying of a foreign book in a Scriptorium or later by an expedition to
a foreign or specialized domestic law library. The information is just a mouse-click
away and more and more often in English. But still, there are only a handful of cases
in the avalanches of hundreds, thousands, or even tens of thousands of cases
decided by the supreme courts in the jurisdictions studied, in which foreign law
is of any relevance for the interpretation of national laws by courts. If pushed to an
extreme, even the existence of a reverse proportion could be suggested: the more
information is freely available and accessible, the less judges may in fact be inclined
to use it.
The introductory argument presented here is very far from suggesting that law
and judicial work in Europe today are not becoming increasingly interconnected,
international, or European, with judges engaging with actors and materials outside
of their national legal order; quite to the contrary. The argument put forward
instead is that if viewed in a broader historical context, it is rather that judges are yet
again engaging with the world outside of the national legal borders. Furthermore,
on the existing empirical evidence, it cannot be stated that comparative engage-
ment, if defined as voluntary comparative engagement with the foreign,27 is globally
on the rise.
25 See ch 3, section 2.3 and ch 14, section 2.5; and also generally in ch 8 (on the Czech Republic)
and ch 9 (on Slovakia).

26 See ch 5, section 4.
27 See further ch 2.
2. The Context of the Current Debates

It might thus be suggested that what is rising is not necessarily the actual quantity of
the voluntary use of foreign law by courts but rather the amount of scholarly
writings on that subject. If one were to assume that such a proposition is correct,
how could be the mass of recent literature dealing with this issue explained? Where
did the scholarly interest come from?
The exponentially growing numbers of works dealing with comparative law in
courts is striking, especially if one contrasts this development with the classic major
Western works on comparative law, published just few decades ago,28 where the use
of comparative law by courts would be mentioned just marginally or not mentioned
at all. These classics were typically concerned with the use of comparative law for
the purposes of legislative work or legal research and scholarship. Comparative law
in the process of adjudication was not in the limelight. When describing the
‘classical edifice’ of European comparative law scholarship, Mathias Reimann
identified four distinguishing points of this tradition:
(i) the private law orientation;
(ii) the main focus is put on comparisons between the systems of the common
law and the civil law, neglecting other legal cultures;
(iii) the assumption is that the important legal sources are codifications, legisla-
tion, and case law;
(iv) the introduction to comparative law just follows educational purposes and a
fairly limited list of traditional goals.29
The traditional goals of comparative analysis, apart from the educational goals,30
have been either to develop common standards which would later form the basis for
international or European harmonization, or to use the knowledge domestically for
the purpose of ameliorating the drafting of statutes.31 Little attention was paid
to the use of comparative argument by the decision-making bodies, ie the judiciary
or the executive.
In the last twenty years or so, this tradition has gradually been changing, due to
many factors. Three of them can be pointed out: first, there has been a change and
28 See especially: Zweigert and Kötz (n 20); Gutteridge (n 2); R David and C Jauffret-Spinosi, Les
grands systèmes de droit contemporains (10th edn, Dalloz 1992); LJ Constantinesco, Rechtsvergleichung
(Carl Heymanns Band I–1971, Band II–1972; Band III–1983); M Rheinstein, Einführung in die
Rechtsvergleichung (CH Beck 1974).
29 M Reimann, ‘Stepping Out of the European Shadow: Why Comparative Law in the United
States Must Develop Its Own Agenda’ (1998) 46 AJCL 637, 638.
30 See generally: KH Neumayer, ‘Rechtsvergleichung als Unterrichtsfach an deutschen Universitä-
ten’ in H Bernstein and others (eds), Festschrift für Konrad Zweigert zum 70. Geburtstag (Mohr Siebeck
1981) or B Aubin and K Zweigert, Rechtsvergleichung im deutschen Hochschulunterricht: Eine Bestands-
aufnahme und Reformvorschläge (Mohr Siebeck 1952).
31 See, eg: I Zajtay, ‘Réflexions sur l´évolution du droit comparé’ in Bernstein (n 30). In greater
detail: Constantinesco (n 28) Band I, 69–202.

The Context of the Current Debates 17
diversification within the classical edifice of comparative law study. New strands
and purposes of comparative study, not just limited to the classic static comparisons
of laws for the purpose of better legislation and legal education, have been sought.
Secondly, there has been an overall shift of attention in the legal scholarship
towards courts and judges. This was caused partly by the increasing judicialization
of all European societies and the corresponding re-evaluation of the role of the
courts, and partly by mimicking the dominant Anglo-American legal scholarship,
which traditionally placed a great importance on courts in the legal system.
A particular phenomenon within this category is the world-wide copying of the
research themes dominating the US legal scholarship. Before the series of high-
profile constitutional cases in the US Supreme Court a decade ago, following which
the until then hardly noticed practice of including some additional, subsidiary
comparative arguments became contested,32 comparative law in courts did not stir
much attention. After that, articles on the ‘new, global’ phenomenon started
mushrooming world-wide, even if, in most systems under normal circumstances,
the practice of such comparative references would continue not to be really noticed
or discussed.
Thirdly, with the rise of international organizations, international legal regimes
and their courts, and the ensuing growth of the study of ‘globalization’33 and
‘transnationalism’, the boundaries of the classical edifice became blurred. The
distinction between the legally binding international and/or European law and by
its nature voluntary comparative legal studies became somewhat less clear. This has
as a consequence that a number of writings which carry the word ‘comparative’ in
their title have in fact little or nothing at all to do with classic comparative law in
the above outlined traditional sense. They would nonetheless still contribute to the
impression that comparative law and the amount of comparative exchange are
rising.
It has become almost a tradition of comparative law to announce, at regular
intervals, its own death34 and (sometimes) its subsequent resurrection.35 It appears
that the resurrection of the study of comparative law is now being expected from
judges and the courts. A good judge these days is supposed to be an international
and a comparative lawyer, who is not ‘narrow-minded’ and who openly engages
with the world outside. Against the historical background outlined above, it seems
32 Further discussed in ch 14, section 3.2.

33 HP Glenn, ‘A Transnational Concept of Law’ in P Cane and M Tushnet (eds), The Oxford
Handbook of Legal Studies (OUP 2003) 843 counted the number of academic articles indexed in the
‘Index to Legal Periodicals “between the years 1981 and 2000 which contained the word” global
(ization)’ in the title. In 1981, it was 8 articles, in 1990 it was 51, in 1996 it was already 198 articles,
and in 2000, the number became 390.
34 See, for instance, the gloomy outlooks in B Markesinis, Comparative Law in the Courtroom and
Classroom: The Story of the Last Thirty-Five Years (Hart 2003) ch 1 or MM Siems, ‘The End of
Comparative Law’ (2007) 2 (2) Journal of Comparative Law 133.
35 Günter Frankenberg noted some time ago (in relation to comparative methodology) that
comparativists have identity problems; they feel isolated, underrated, and not adequately appreciated—
in ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 Harvard ILJ 411, 411, and 419. One
may only add that another necessary prerequisite for the profession seems to be the overall pessimism about
their own field of study, the world, the future, and everything.
that interest in the comparative work by courts broadly coincides with the moment
judges begin to be (again) recognized as law-makers. Their degree of choice,
beforehand dogmatically reserved only to the sovereign legislator, becomes (yet
again) acknowledged. Equally, the sources and materials which influenced such a
choice start to matter, as the decision-making can no longer really be covered by the
modernist dream of all-encompassing national statute and the will of the national
legislator.
Scholarly attention has thus turned to courts and their use of comparative law.36
It remains to be seen whether this attention will be lasting or whether it will be just
one of the (historically many) fashionable and temporary waves in legal studies.
Already in 1996, Thijmen Koopmans opined that:
[O]ne may be tempted to think that the future belongs to comparative law. And
perhaps that will be so. There have always been certain fashions in the way courts
proceed to find the applicable rules and principles. In the nineteenth century history
was very much the fashion ( . . . ) Our own century discovered society: it wondered how
the law works, what its economic context is ( . . . ) The twenty-first century may
become the era of comparative methods.37
36 Such a trend might be also seen in such seemingly marginal things as the choice of topics for the
congresses of the International Academy of Comparative Law. In 1982 in Caracas, the topic was ‘The
Use of Comparative Law by Legislators’, in 1997 in Athens, the topic of the Congress became ‘The Use
of Comparative Law by Courts’.
37 T Koopmans, ‘Comparative Law and the Courts’ (1996) 45 ICLQ 545, 555–6.
2
Foreign Law in Courts: A Typology
The object of this study is non-mandatory references to foreign law by a national

judge in interpreting domestic law for the purpose of solving a domestic dispute, ie
a dispute where the use of foreign law is not compulsory. It is a study on the
influence of foreign persuasive authority on domestic judicial decision-making. It
tests if and how far judges in Europe today indeed choose to become transnational
actors, seek to engage with the foreign, and seek to be influenced by it even if not
obliged to.
The focus is therefore on the situations in which the judge has a choice as far as
consulting foreign law is concerned. There is a great difference between, on the one
hand, judges using the laws of another state in a conflict of laws situation, and, on
the other, using foreign law for interpreting a notion of the national constitution
in a purely domestic situation. In the first scenario, even judges who generally
disapprove of anything foreign are obliged to consider foreign law by virtue of a
command issued by their own legal system. They can thus safely remain, even if
using foreign law, nationalistically-minded positivists, because the authority for
applying the foreign law is purely national. In contrast, it is only in the second
scenario that judges display a personal preference and attribute any authority to the
foreign law. In such a case, the judges can indeed be said to mentally cross the
boundaries of the national legal system.
For instance, a reference made by a European national supreme court to the
established case law of the Court of Justice of the EU in a dispute relating to public
participation in decision-making in environmental matters, ie a matter covered by a
number of EU pieces of legislation, is qualitatively different from a reference made
by the same court in the same dispute to the case law of the US Supreme Court
dealing with similar issues. In the first scenario, engaging with the case law of the
Court of Justice is a must; in the second, looking at the practice of the US Supreme
Court is a may.
By not taking into account the normative commandments of the national legal
system under which judges act, any picture seeking to describe their engagement
with the foreign becomes deformed.1 Metaphorically speaking, if one disregards the
1 To give just one notable example: AM Slaughter considers references to the Court of Justice by
national courts (within the EU), applications by individuals to the ECtHR, as well as instances of direct
references between domestic courts in the interpretation of national laws, to all form a part of the same
phenomenon of judicial dialogues. From the point of view of a national judge, however, these
are qualitatively different scenarios. See especially: AM Slaughter, ‘A Typology of Transjudicial
20 Foreign Law in Courts: A Typology
national normative requirements as far as the various types of involvement
of foreign law in some instances of judicial decision-making are concerned, the
ensuing piece is a Cubist painting: very colourful, full of spicy details, but bearing
no relation to the genuine structure of the object observed. On the other hand, a
study which focuses solely on the normative requirement of a system and disregards
the individual choice, which is always present to a certain extent, resembles a
religious Gothic painting before the (re)discovery of linear perspective: an oversized
normative Madonna in the middle with no sense of perspective and details. As the
effort of this study is to obtain, perhaps a little dull, but still a realistic picture,
the approach opted for is to acknowledge a great degree of choice and personal
preference within the bounds of the normative requirements of the system.
The key criterion for national judges when deciding whether or not to engage
with anything foreign is thus their mandate in the specific case under the national
legal system. When looking for the basis judges find in the national law for referring
to foreign law, three situations can distinguished:2
(i) Mandatory uses of foreign law—in these cases, the national legal system
expressly commands the national judge to use and to refer to foreign law.
The failure to do so will result in a sanction against the decision rendered.
(ii) Advisable uses of foreign law—there is at least some, be it express or
implied, national basis for the judge to look into foreign law in certain
types of cases. However, if the judge fails to do so, no sanction generally
follows.
(iii) Voluntary uses of foreign law—there is no distinct basis in the domestic
legal order for the use of foreign law in this type of case.
Judicial choice with respect to the foreign has naturally two sides: positive and
negative. The positive represents the active choice of a judge: even if not obliged to,
a judge goes on and considers or refers to a foreign solution. However, the other
side of the same coin is also the exercise of negative choice not to engage with
anything foreign even if the judge is obliged to. Positive side of the choice is mostly
visible in instances of non-mandatory uses of foreign law, whereas the negative one
appears in instances when the recourse to the foreign is compulsory. Only a
combination of the two might provide a complete picture with respect to judicial
choice vis-à-vis the foreign. Such a study is, however, virtually impossible to carry
out, as negative choices remain in most cases undetected. This book is therefore
limited to instances of positive judicial choice to engage in the instances of non-
mandatory use of foreign law.
Communication’ (1994–1995) 29 U Richmond LR 99 or AM Slaughter, ‘A Global Community of

Courts’ (2003) 44 Harvard ILJ 191.
2 This division is inspired by U Drobnig, ‘Rechtsvergleichung in der deutschen Rechtsprechung’
(1986) 50 RabelsZ 610 and U Drobnig, ‘General Report: The Use of Comparative Law by Courts’ in
U Drobnig and S Van Erp (eds), The Use of Comparative Law by Courts (Kluwer 1999). Drobnig
distinguished between necessary comparisons, comparisons in cases of legal rules with an international
element, and comparisons of legal rules of purely domestic character.
Mandatory Uses of Foreign Law 21
1. Mandatory Uses of Foreign Law

This category unites instances in which the national courts are obliged, by virtue of
domestic law, to use foreign legal rules in deciding cases. Legal rules in this category,
even if of foreign origin, are for the purpose of their application in the individual
case basically treated as domestic law. The domestic legal system pulls the foreign
norms inside its own normative framework and enforces them. This has some
important consequences:
(i) The foreign legal rules have normative value. They function as a genuine
and direct source of legal norms, not just as an aid in interpretation.
(ii) Foreign law in this category should be, at least in the Continental systems of
procedure, identified and applied by judges of their own motion.
(iii) If foreign law is not properly identified and/or applied, the decision may be
sanctioned. It may be either quashed on appeal for disregarding the applic-
able law and/or the state may be eventually found liable for the illegal
decision rendered by the court.
The general observations expressed above fully apply for Continental legal systems.
There are conceptual differences between the English adversarial civil procedure
and the Continental more inquisitorial one that spill over also into the use of
foreign law. Most notably, English law treats foreign law in, for instance, conflict of
laws cases, as facts, not as law.3 This means that the law is to be argued by the
parties and established, alongside other facts pertinent to the dispute. This is,
however, primarily a procedural tool as to how the applicable law is to be identified.
It does not deprive the identified norms or their normative value and later direct
application to the facts of the case.4
It is clear that national judges applying foreign law in cases of mandatory uses of
foreign law do not need to have any openness to anything foreign, as there is little
choice involved in referring to foreign law.5 The judges are just following the
national rules that command them to apply foreign law in the particular case at
3 See, eg: RG Fentiman, ‘Foreign Law in National Courts’ in G Canivet and others (eds),
Comparative Law before the Courts (BIICL 2004) 15; L Collins (ed), Dicey, Morris and Collins on
The Conflict of Laws: Volume 1 (14th edn, Sweet & Maxwell 2006) 255ff; S O’Malley and A Lyaton,
European Civil Practice (Sweet & Maxwell 1989) 230ff.
4 See RG Fentiman, Foreign Law in English Courts (OUP 1998) 265–85 or M Jänterä-Jareborg,
Foreign Law in National Courts: A Comparative Perspective (Nijhoff 2003) 236ff.

5 As already suggested, the displayed choice is frequently rather a negative one: to avoid, if possible,
any foreign law. The various national conflict of laws rules show an intricate amount of judicial
interpretative constructs the task of which is to exclude having to apply foreign law even in cases in
which the judge is clearly obliged to do so. These include the assumption that unless otherwise proven
the content of the foreign law is the same as the national law, or interpreting the intention of the parties
as far as the choice of foreign law is concerned very restrictively in order to arrive at the conclusion that
the applicable law is actually the domestic one and so on. For a comparative discussion, see: I Zajtay,
The Application of Foreign Law: International Encyclopaedia of Comparative Law III-14 (Mohr Siebeck
1972) 9ff or R Hausmann, Pleading and Proof of Foreign Law—a Comparative Analysis: The European
Legal Forum 1–2008 (IPR Verlag 2008) 6–13.
hand. That is why even the most relentless opponents of the domestic use of foreign
law have no problem with using foreign law in situations when the national legal
system makes the use of the foreign mandatory.6 From their point of view, the
integrity and the primacy of the national system are fully preserved, as the grounds
for the use of foreign law are not anything extraneous, but their own domestic
authority.
1.1. Private International Law (Conflict of Laws)

Conflict of laws is a typical example in the category of mandatory uses of foreign
law. A national collision rule firstly determines what the appropriate forum for the
dispute in question shall be. Provided it is a domestic one, it then determines what
law shall govern the dispute. Once the national rule has determined that there is a
foreign element to the dispute, the application of substantive or procedural rules of
foreign law is mandatory by virtue of national law.
In such situations, the reference to and the use of foreign law is a compulsory
element of the correct application of national law itself. A slight refinement should
be, however, added at this stage: there are areas within private international law
where reference to foreign law may be outside the domain of mandatory references.
These are the instance of judicial further development of the domestic collision
rules by the help of comparison with the collision rules in other legal orders.7 The
criterion for deciding in which category the use of foreign law falls is thus not
automatically the area of law (private international law/conflict of laws), but the
type of legal basis on which the national judge is using foreign law in the particular
case. In the vast majority of cases, however, the instances of the use of foreign law in
the area of private international law would fall within the mandatory category.
1.2. Mutual Recognition, Extradition, and Other

Compulsory Considerations of Foreign Law
The common denominator of this category of mandatory uses of foreign law is that
the national judge is obliged to consider foreign law in order to assure its compati-
bility with the national legal order as a precondition for a domestic decision.
Typical instances in this category include the ascertaining of foreign law for the
purpose of the recognition of a foreign decision and its domestic enforcement, or
extradition cases.
While recognizing a foreign judicial decision, a national court is indirectly called
to judge on the compatibility of national law with foreign law. What is happening is
6 That is why, for instance, not even Justice A Scalia, one of the outspoken opponents of references
to foreign law, articulates any reservations to the US Supreme Court use of foreign law in the conflict of
laws scenario. See: ‘A conversation between U. S. Supreme Court Justices’ (2005) 3 I-CON 519, 532.
7 See, eg: Fentiman (n 3) 14 and 20. See also Drobnig, ‘Rechtsvergleichung in der deutschen
Rechtsprechung’ (n 2) 619; or B Fauvarque-Cosson, ‘Foreign Law before the French Courts: The
Conflict of Laws Perspective’ in Canivet (n 3) 3–12.
a certain mirroring of the domestic with the foreign rule and passing of a judgment
on their mutual compatibility. Necessary comparison between the foreign and
domestic law, more precisely the absence of a major discrepancy, which may be a
cause for refusal to recognize for whatever reason, forms the precondition of the
domestic recognition of a foreign decision.8
A similar compulsory study into foreign laws is present in extradition cases or
other instances of international judicial cooperation in criminal matters. Most legal
systems might condition the possibility of extradition in criminal proceedings by a
number of requirements: the condition of dual criminality, ie the requirement that
the act committed must be punishable under foreign as well as domestic law; the
requirement that the penalty imposed in the state to which the individual is being
extradited will not be higher than the maximum penalty imposable under national
law; the safeguard of the rights of the accused person in the foreign criminal
procedure in order to guarantee fair process in the country to which the person is
to be extradited, etc.9 In all these cases, it will be obligatory for the national court to
look at foreign law.
1.3. Directly Applicable Sources of Public International Law

The relationship between public international law and municipal legal systems
forms a very complex und uneven landscape. The particular form of it depends on
two variables: first, the constitutional provisions of the respective municipal legal
system stating how international law enters the national legal domain and, sec-
ondly, the respective type of the source of international law in question.
The openness of the constitutions of national European legal systems towards
the sources of international law varies considerably: from very open systems, such
as the Dutch one, to rather closed ones, such as the Italian.10 The variety is reflected
in the lasting debate between monist and dualist approaches to the relationship
between the national and international law. In the monist visions, international
and municipal laws are just different elements of the same system. Dualist ap-
proaches claim that international law is a system distinct from the municipal
legal orders, having distinct sources, objects, subjects, and the mode of regulation.
8 The refusal to recognize may be labelled differently in different systems—ordre public, exception
of public policy, exception of gross illegality, etc. For a comparative discussion, see eg: I Bach,
Grenzüberschreitende Vollstreckung in Europa (Mohr Siebeck 2008); PJ Omar, Procedures to Enforce
Foreign Judgments (Ashgate 2002).
9 See generally eg: J Delbrück and R Wolfrum, Völkerrecht. Band I/1: Die Grundlagen (2nd edn,
De Gruyter 1989) 150–85. Such traditional conditions attached to cooperation in criminal matters are
nowadays, however, limited mostly to cooperation with extra-European states. For the simplified intra-
EU procedures, see eg: G De Kerchove and A Weyembergh (eds), La reconnaissance mutuelle des
decisions judiciaries pénales dans lÚnion européenne (Université libre de Bruxelles 2001); N Keijzer and
E van Sliedregt (eds), The European Arrest Warrant in Practice (TMC Asser 2009); or H Satzger,
Internationales und Europäisches Strafrecht (Nomos 2005).
10 See Delbrück and Wolfrum (n 9) 98–124; PM Dupuy, Droit international public (8th edn,
Dalloz 2006) 415ff.

The applicability of international law within municipal systems is therefore condi-
tional upon its reception by the respective system.11
The significance of the respective approaches for the purpose of this study is yet
again the national basis for the judge to engage directly with foreign laws, ie the
sources of international law. In the pure monist model, all the sources of inter-
national law are directly pulled into the national legal system. They need not be
individually transformed or incorporated in any way. They are directly applicable
and are mandatory sources of law for the national judge. On the other hand, in the
pure dualist model, any domestic application of any source of public international
law necessitates its transformation into a norm of the domestic legal system or at
least the express legislative pronouncement that in the particular case, such trans-
formation is not required.12
The continuing debates about the monist/dualist foundations tend to overstate
the differences and to underestimate state practice.13 Both ideal models often meet
somewhere in the middle in terms of actual practice. The key difference is not
necessarily whether or not a given state as such is being put into the monist or
dualist box, but rather the type of the source of international law in question. The
dividing line runs between treaties on the one hand and international customs,
general principles of law, and judicial decisions on the other.14 As far as the
domestic application of treaties is concerned, even the states labelled as monist
might require some sort of treaty transformation into their national law.15 On the
other hand, the states nominally labelled as dualist may open themselves up to the
direct domestic application of sources other than treaties.16
When working with sources of international law directly applicable in the
national legal forum, the judge is engaging with mandatory foreign law. In such
situations, international law is directly pulled into the national legal system and
applied by the judge. An illustrative example of such use and reference to foreign
law is the domestic application of general principles of international law or
international custom within the German federal legal order. Article 25 of the
German Basic Law provides that:
The general rules of international law shall be an integral part of federal law. They shall
take precedence over the laws and directly create rights and duties for the inhabitants of
the federal territory.
11 See especially: H Kelsen, Reine Rechtslehre (2nd edn, Österreichische Staatsdruckerei 1992)
328–43.
12 See eg: P Malanczuk, Akehurst’s Modern Introduction to International Law (7th edn, Routledge
1997) 64 or Delbrück and Wolfram (n 9) 105–6.

13 Delbrück and Wolfram (n 9) 100 or Malanczuk (n 12) 63–4.
14 In the sense of the classification made by Art 38 (1) of the Statute of the International Court of
Justice. See generally: I Brownlie, Principles of Public International Law (7th edn, OUP 2008) 3ff or
Dupuy (n 10) 267ff.
15 Often as a consequence of the fact that a treaty, even if nominally already part of the municipal
legal order, is not self-executing and thus still needs further implementing measures for its domestic
application. For a detailed discussion, see Delbrück and Wolfram (n 9) 104–22.
16 For instance Germany (Art 25 GG); the Czech Republic (Art 1 (2) Czech Constitution); or
Greece (Art 28 (1) of the Greek Constitution).

There is a specific type of procedure before the German Federal Constitutional

Court (Bundesverfassungsgericht17), in the framework of which the Bundesverfas-
sungsgericht may be called upon by any German ordinary court to decide whether or
a not there is a specific principle of international law which should be applied
domestically by German courts. Within such examination, the taking into account
of foreign law and foreign decisions is a compulsory element in deciding whether or
not there is an already established principle of international law, which can be
applied in the domestic legal forum.18
In sum, when using directly applicable sources of international law in the
domestic forum, the national judge has no choice. In accordance with the modal-
ities provided for in the respective national constitution, reference to sources of
international law constitutes mandatory use of foreign law. There are, however, two
exceptions to this.
First, a different situation is at hand once a judge in a dualist system, which
requires for the purpose of domestic application of international treaties their
transformation into a source of national law, uses the original international docu-
ment or the international practice (case law) born under it as a tool for the
interpretation of the national statute. This is typically the situation in the interpret-
ation of a statute which has incorporated a multilateral treaty unifying certain
aspects of international business, civil law, or criminal law. Such use of the foreign
law tends to be just advisable.19
Secondly, a national judge could argumentatively use the reference to public
international law outside the scope of its application. This may be the situation
when the case being determined were outside the scope of public international law
ratione materiae, but the judge would use the international source as a persuasive
authority for the purpose of interpreting a source of national law.20
1.4. Law of the European Union

Both systems of European law, ie the law of the European Union as well as the law
of the European Convention on Human Rights (ECHR), are basically specific
instances of directly applicable international legal regimes. The national courts as
well as other public authorities are obliged to take them into account in the domestic
proceedings in the same way as national laws. The key difference between the two
systems is that the domestic application of the ECHR and the case law of the ECtHR
17 Art 100 (2) GG, further see, eg: B Schmidt-Bleibtreu and F Klein (eds), Kommentar zum
Grundgesetz (10th edn, Luchterland 2004) 1784ff.

18 For a recent example, see, eg: BVerfGE 118, 124, in which the Bundesverfassungsgericht examined
whether there is a recognizable general principle of international law which allows a bankrupt state to
refuse, at least temporarily, to meet its financial obligations towards private lenders.
19 See section 2.1 of this chapter.
20 For instance, within the framework of the judicial review of a national administrative decision,
where there is no obligation to consider any international law, a judge may still refer also to one of the
sources of international law in support of a claim that the same principle (proportionality, principle of
good administration, etc) is also part of international law, and thus indeed general and worth following
on the national level as well.
have remained faithful to a more traditional construction of public international law.
The decision as to the domestic status of the Convention and decisions adopted
under it have been left to the Contracting Parties.
The domestic application of EU law has, on the other hand, departed from this
scheme. Already in its early case law, the Court of Justice of the European Union
stated that EU law (back then EC law) must have the same characteristics in all the
legal systems of the Member States, including its primacy and direct effect.21 In this
way, the Court of Justice vacated the respective constitutional choices made by the
Member States’ constitutions. From the point of view of the Court of Justice, EU
law is integrated 22 into the legal systems of the Member States. EU law ought to be
treated in the same way as national law: it should be raised and applied by national
judges of their own motion.23 EU law is thus no foreign law for national judges
at all.
Theoretical and constitutional views as to the foundation for domestic applica-
tion of EU law differ between, on the one hand, the Court of Justice and, on the
other, the constitutional or supreme courts of the Member States. National
supreme/constitutional courts insist on perceiving EU law as one of the systems
of international law, ie a foreign system, to which they temporarily and condition-
ally transferred parts of their powers and whose domestic application is conditioned
by its national constitutional acceptance.24 In this perspective, EU law remains a
foreign legal system, albeit of special status.
This question of dogmatic construction does not have much impact in practice.
Even if the constitutional foundations for the domestic application of EU law
differ, all the systems recognize that EU law is a mandatory system of rules which is
to be applied by the national judges in the way provided for by EU law and the
Court of Justice. For the purpose of this study therefore, domestic application of
EU law is not considered to be any recourse to foreign law. There are, however, two
exceptions to this proposition:
First, notwithstanding the fact that EU law aspects can be found in virtually all
areas of law, there might still be areas untouched by EU law or situations in which
no EU law applies. If in these areas and irrespective of the fact that a national court
does not have an obligation to apply EU law to the dispute at hand, the national
court still proceeds to use EU law as a guide to the application of purely national
law, the use of EU could be said to constitute a type of a non-mandatory reference.
In such situations, EU law is just persuasive.25
21 See eg: B de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in P Craig and
G de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011) 323ff.
22 Cf Joined Cases C-6/90 and C-9/90, Andrea Francovich [1991] ECR I-5357 [31].
23 Cf Cases C-430 and 431/93, Van Schijndel [1995] ECR I-4705; Case C-312/93, Peterbroeck
[1995] ECR I-4599; Joined Cases C-222/05 to C-225/05, J. van der Weerd [2007] ECR I-4233.
24 For an overview of the constitutional reservations of this type in the old Member States, see, eg:
AM Slaughter, A Stone Sweet, and JHH Weiler (eds), The European Court of Justice and National
Courts: Doctrine and Jurisprudence (Hart 1998); for the new Member States, see, eg: A Łazowski (ed),
Brave New World; The Application of EU Law in the New Member States (TMC Asser 2010).
25 To be able to distinguish whether a particular question is within or outside the scope of
application of EU law ratione materiae may be, however, a rather demanding assessment. Cf Joined
Secondly, EU law and the case law of European courts could be used by a non-
Member State as a sort of guidance in depicting what the European standards on a
certain issue might be. For the purposes of this study, this is especially the case in
the pre-Accession phase in the Czech Republic and Slovakia. The courts in these
countries as well as in other candidate states in Central Europe referred to EU law
and the case law of the Luxembourg courts as a source of inspiration for the
interpretation of approximated national laws even before their accession to the
European Union.
1.5. Law of the European Convention on Human Rights

The situation of the law of the ECHR and the case law of the ECtHR is similar to
and yet different from EU law. On the one hand, the ECHR forms, as the ECtHR
stresses, the ‘constitutional instrument of European public order in the field of
human rights’.26 On the other hand, the ECtHR never made the Copernicus
turn27 in the perception of the relationship between the ECHR and the systems of
the Contracting Parties, which would be similar to the Court of Justice announcing
primacy and direct effect and thus taking away the Member States’ autonomy in
defining the effects of an international legal regime within their domestic legal
order. The style of incorporation of the ECHR law into the domestic legal systems
is thus left to the discretion of the Contracting Parties.28
In whatever way one may conceive of the domestic status of the ECHR and
ECtHR case law, the application of it for the courts of all the Contracting Parties is
nonetheless mandatory today. An exception to this is, again similarly to the
situations mentioned with respect to public international law and EU law, the
situation in which a national court might use the standards of the ECHR or the case
law of the ECtHR for persuasive reasoning outside their material or personal scope
of application.29
Cases C-297/88 and C-197/89, Dzodzi [1990] ECR I-3763 or Case C-28/95, Leur-Bloem [1997]
ECR I-4161. More recently, see, eg: Case C-27/11, Vinkov, judgment of 7 June 2012, n.y.r. or Case
C-617/10, Hans Åkerberg Fransson, judgment of 26 February 2013, n.y.r.
26 Judgment of the Grand Chamber of 30 June 2005 in case Bosphorus Hava Yollari Turizm ve
Ticaret Anonim Şirketi v Ireland, app no 45036/98, ECHR 2005-VI [156].

27 Or, as Alec Stone Sweet refers to it, a ‘juridicial coup dÉtat’ in ‘The Juridical Coup d´État and
the Problem of Authority: CILFIT and Foto-Frost’ in M Poiares Maduro and L Azoulai (eds), The Past
and Future of EU Law (Hart 2010) 202.
28 As a consequence, in the legal orders of some Contracting Parties, the Convention may be given
constitutional rank; in others it may be placed in between the Constitution and mere statutes; in yet
others, the Convention may have an equal rank to a national statute—further see the respective
national reports in G Martinico and O Pollicino (eds), The National Judicial Treatment of the ECHR
and EU Laws (Europa Law Publishing 2010) or A Stone-Sweet and H Keller (eds), A Europe of Rights:
The Impact of the ECHR on National Legal Systems (OUP 2008).
29 Examples from domestic practice are situations in which the courts of the Contracting Parties
apply by analogy the case law of the ECtHR relating to the standards required under Art 6 (1) of the
European Convention for criminal proceedings to national proceedings not falling under the ‘criminal
limb’ of Art 6 (1), such as imposition of administrative sanctions and penalties or disciplinary
proceedings against state officials. In these cases, standards elaborated by the case law of the ECtHR
serve as persuasive guidance outside its material scope of application.
2. Advisable Uses of Foreign Law

This category regroups instances in which the absence of the use of foreign law is
not sanctioned. At the same time, there is nonetheless some, at least implied or
indirect, basis for the national judge to consult and to refer to foreign law.
Typically, the authority is not one of enforceable legal rules (for instance a
municipal statute on private international law providing for rules requiring the
judge to apply foreign law), but soft rules on proper statutory interpretation or a
consensus in scholarly writings which suggest that a reference to foreign legal
sources in such a scenario is the correct way for a national judge to proceed. In
contrast to the instances of mandatory uses, foreign law if used in this category is no
longer a direct source of law, but only a persuasive source of inspiration in the
process of interpretation.
2.1. Reference to a Parent International Law

(and to EU Law before Accession)
A substantial amount of legislative activity at the level of national states today is not
original legislation, but the transposition of a European30 or international model.
For the purposes of proper interpretation of the national legislative offspring, the
recourse to the international parent may be advisable. These are the instances of
conform or harmonious interpretation. Additionally, when interpreting the na-
tional measure, a national judge may look not just into the original parent text, but
also horizontally into the domestic application of the same text in other jurisdic-
tions which have also sought to implement the same document domestically.
The most current type of conform interpretation, namely the conform interpret-
ation (indirect effect) of EU law, nonetheless cannot be said to belong to this
category. The position taken by the Court of Justice requires the Member States’
courts to apply EU law in the same regime as domestic law, including, for that
purpose, the indirect effect of directives and other EU legislation. Within the
system of EU law, consistent interpretation is a duty, not a choice.31
A different situation is, however, at hand with respect to public international law.
Typically, a national law is passed implementing an international (multilateral or
bilateral) treaty. From the point of view of national constitutional law, the international
30 Suggestions with respect to how much of national legislation today is nothing but implementa-
tion of EU law differ considerably according to the computing method used by the respective author
and data sets taken into account on either side, EU as well as national. They may lie anywhere in
between 10 per cent and 70 per cent or even 80 per cent. From the more recent debates see, eg: A
Töller, ‘Mythen und Methoden: Zur Messung der Europäisierung der Gesetzgebung des Deutschen
Bundestages jenseits des 80 per cent-Mythos’ (2008) Zeitschrift für Parlamentsfragen 8; T Hoppe,
‘Die Europäisierung der Gesetzgebung: Der 80-Prozent-Mythos lebt’ (2009) 20 EuZW 168; Y
Bertoncini, What is the impact of EU interventions at the national level? (Notre Europe 2009); see
also the various contributions on this topic in the first issue of (2010) 88 Public Administration.
31 Generally see, eg: S Prechal, Directives in EC Law (2nd edn, OUP 2005) sections 8.5 and 9.5.
Advisable Uses of Foreign Law 29
law obligation of a state could be said to have been fulfilled.32 A national judge
may nonetheless go on and reach for the original document or the case law generated
by its interpretation as a source of inspiration in cases of later (purely) domestic
application of the said law. In such a case, the judge is using foreign law as a
persuasive authority in interpreting domestic law. However, the regard for the
original text is mandated by the origin of the domestic norm and the uniformity
and coherence in the interpretation of the same international legal rule.33
2.2. Laws Shared with or Taken from Other States

A similar and yet different situation arises in cases where:
(i) The origin of the domestic law is in the laws of different state, ie state
A intentionally took over a legal solution from a state B.
(ii) The origin of a national law can be traced back to some common roots.
The first category is represented by a great number of legal ‘borrowings’ in Europe
and beyond. In an interconnected world, a substantial amount of legislation is
copied from various templates. Most of it is never expressly acknowledged. The
question with respect to them is whether the daughter laws should pay, after their
passage, any attention to the legal experience, including the case law, of the parent
legal system.
In cases where an express acknowledgement of a foreign model is provided, it can
be said that the domestic judge has at least some implicit mandate given by the
national legislator for looking at the parent jurisdiction for inspiration. A reference
to the source of the original legislative inspiration might be contained in the
preparatory works or legislative reports produced in the process of the adoption
of the legislative text, explanatory memoranda to the bill submitted to the Parlia-
ment, debates in the Parliament, etc. Once the foreign inspiration is clearly stated
within the domestic legislative process, a judge may construe certain legislative
intent to adopt a regulatory framework similar to that in the original legal order and
derive legitimacy for consulting the original foreign model and the case law
generated in that system. Yet another sub-question here is the temporal aspect:
are judges in such cases strictly limited to historical sources, ie the law of the mother
32 As already explained in section 1.3 of this chapter, the answer to this question may differ
depending on the respective status given to this source of international law by the national consti-
tutional provisions. The answer might also differ if approached purely from the point of view of public
international law, which could claim, on the basis of a broad interpretation of Art 26 of the Vienna
Convention on the Law of Treaties, that the duty to duly perform treaties also includes the duty of all
domestic institutions, including the courts, to refer themselves to the original treaty document. See
generally: Lord McNair, The Law of Treaties (Clarendon Press 1961) 345ff; A Aust, Modern Treaty
Law and Practice (2nd edn, CUP 2007) 178ff.
33 Some legal systems, such as Germany, may go further and make this type of use of foreign law a
requirement of the national legal order, thus moving this type of use into the mandatory category. Cf
the discussion of the case law of the German Federal Supreme Court in U Drobnig, ‘Report on
Germany’ in Drobnig and Van Erp (n 2) 132.
as it stood at the moment of the ‘borrowing’, or can they also take into account the
evolution of the mother system afterwards?
The most frequently mentioned example for the second type of reference to
foreign law is the judicial comity between the common law jurisdictions within the
British Commonwealth, ie between the English legal system and its colonial
offspring. The courts in the former colonies and now still dominions (Australia,
New Zealand, Canada, and others) do refer to the case law of the English courts and
other members of the common law world, even after the Privy Council ceased to be
the final court of appeal for these countries.34 The same is, however, true of the
English references to the judicial decisions and laws of these countries: the English
report to the XIVth International Congress of Comparative Law suggests that in
the period between 1972 and 1993, almost 75 per cent of the references to foreign
law were made to one of the other common law jurisdictions.35 The ideological
underpinning of these references is the common heritage and the perceived unity of
the common law. Instances of similar post-colonial judicial comity can be also
found in relationships between other former colonies and their centres, such as the
former French colonies or between Icelandic and Danish courts.36
Yet another example of the use of foreign models due to common legal roots is
the use of the case law from a different legal system in cases when former federations
in Central and Eastern disintegrated after the fall of the communist regime. Some
of them still share the same legislative background, now gradually diverging. The
use of the decisions of the Czech courts and the Czech legal scholarship in Slovakia
is a notable example in this category. Until 31 December 1992, both countries
shared, to a great extent, the same legal system. Even after the split of the
Federation, the case law of the Czech courts and the solutions adopted by them
are of considerable influence before the Slovak courts, especially where they relate
to a still common piece of legislation.37
2.3. General Principles of Law

General principles of law are an idealist construct, which appeals to universality.
They are general because they are shared by a greater community of legal orders or
they are common to a number of fields of law. They thus represent an ideal area for
comparisons and the referencing to various foreign authorities; as such, a reference
reinforces the claim to universality and generality. When ascertaining the content
of a general principle of law, domestic courts might thus use the reference to the
case law or laws of other normative systems as their empirical evidence that a
broader consensus on the existence of such a principle exists.
34 Cf the national reports in Drobnig and Van Erp (n 2) on Australia (25–58) and Canada (59–96).
Further see ch 5, section 3.1.

35 E Örücü, ‘Report on United Kingdom’ in Drobnig and Van Erp (n 2) 263–5.
36 HE Sigurbjörnsson, ‘Application of a Comparative Method by Icelandic Courts’ in Drobnig and
Van Erp (n 2) 190.

37 Further see ch 9, section 2.2.
Advisable Uses of Foreign Law 31
A reference to foreign support backing up the claim of universality is, however,

just a persuasive and additional argument, not a necessary element in announcing
the existence of a general principle of law. In other words, a statement by a court
claiming that, for instance, the prohibition of retroactivity is a general principle of
law will be valid even if not supported by any reference whatever to foreign
authority. Empirically speaking, one can safely claim that the vast majority of
legal principles applied in national courts are simply normatively announced
without any reference to any foreign materials whatsoever. This fact, however,
does not invalidate their existence, ie the absence of comparative analysis is not
sanctioned in the sense described above when defining reference to foreign law in
the first category of mandatory uses. For this reason, references to foreign law in the
establishment of general principles of law for the purpose of their domestic judicial
application are instances of simply advisable use of foreign law.
General principles of law described in this category are referring to an ideal
mental construct devised for the interpretation and the further development of
national laws. They thus represent a different category from the already discussed
‘general principles of law (recognized by civilized nations)’, which is a source of
public international law.38 This distinction is doctrinal, not necessarily content-
based. Both types of general principles function as guiding principles and as tools
for gaps-closing within their respective normative systems. As far as their content is
concerned, it might often be the same. In public international law, however,
general principles of law are an expressly recognized source of law.39 In the various
national legal systems, the degree of express recognition of general principles of law
as sources of law varies. In some legal systems, general principles of law may be
given an express status as sources of law in the positive law.40 In others, their use is a
matter of judicial invention, judicial practice, and/or the legal scholarship; they
find, however, no express reflection (or codification) in positive laws within the
given legal system.
2.4. Intra-federal References

A special type of the advisable use of foreign law is references to the laws of other
states or units within a federation or other entity. Two types of references of this
sort can be conceptualized, depending on the subject matter of the reference in the
particular case:
38 In the sense of Art 38 (1) (c) of the Statute of the International Court of Justice. See section 1.3 of
this chapter.
39 Despite the fact that there is no consensus in the doctrine of international law as to what the
general principles of law in the sense of Art 38 (1) (c) of the ICJ Statute actually are. Some would claim
that these refer to the principles present in the laws of the various states, others that they refer only to
principles of public international law as a discipline itself. See, eg: B Cheng, General Principles of Law as
Applied by International Courts and Tribunals (Grotius 1987) 3ff; M Koskenniemi, ‘General Principles:
Reflexions on Constructivist Thinking in International Law’ in M Koskenniemi (ed), Sources of
International Law (Ashgate 2000) 360ff.
40 Such as is the case in Switzerland or in Brazil—cf U Drobnig, ‘General Report: The Use of
Comparative Law by Courts’ in Drobnig and Van Erp (n 2) 7.

(i) cases involving the interpretation of only national/state law where a reference
to the national/state law of another state within the same entity is made; or
(ii) cases before the national/state courts dealing with the interpretation of the
supranational/federal law in which a reference to the interpretation of
supranational/federal law adopted by the courts of other states is made.
In the first scenario, a member of the greater entity might refer to a legal solution
adopted by other members of the same unit for the purpose of interpreting its own
legislation. For instance, a court in one of the German Bundesländer may look,
when interpreting state legislation, to the laws or case law of other Länder for
inspiration. Similarly a state court in the United States may refer to the legislation
or decisions of the other state courts in interpreting its own state laws. The courts in
both cases are engaging in a type of comparative analysis. The question is how to
classify, again from the point of view of a state/national judge, a similar sort of
referencing practice: is it mandatory, advisable, or voluntary?
A principle of any federation is the variously expressed rule of federal comity or
mutual assistance and cooperation (good faith and credit clause,41 Bundestreue,42 or
the duty of loyal and sincere cooperation43). A similar clause may be interpreted as
requiring not only cooperation and loyalty between the federation and its members,
ie in vertical or diagonal relationships, but also amongst the individual members of
the federation in its horizontal dimension.
The duty of federal comity could, however, hardly be stretched as far as to
require the use of the law of the other members of the federation in interpreting
state law. The content of such duty between the same units of a federate entity
normally entails just cooperation and mutual recognition. The recourse to the laws
and the case law of other federal states in the interpretation of state law is voluntary
only. It is perhaps the first and the most advisable point of comparative analysis for
any state judge, not least because of the likely cultural and legal proximity of the
units of the federation.
A different situation arises in the second scenario, when state courts are called to
apply federal law. When doing so, they are bound by federal law and by the
interpretation given to it by the federal courts. This is no recourse to foreign law.
The same situation is also at hand when Member State courts apply EU law.
However, does the obligation to have regard to the federal law extend only to the
interpretation given to the federal law by federal courts or are state/national courts
obliged to take into account the decisions and the interpretation given to the federal
law by the national courts of other (member) states?
As far as EU law is concerned, the case law of the Court of Justice indicates that
there is some duty incumbent upon national courts to conduct horizontal com-
parisons as far as the interpretation of EU law in other Member States is concerned.
41 Art 4 (1) of the Constitution of the United States of America.

42 Art 31 and Art 35 (1) GG. See generally: M Jestaedt, ‘Bundesstaat als Verfassungsprinzip’ in
J Isensee and P Kirchhof (eds), Handbuch des Staatsrecht: Band II (3rd edn, CF Müller 2004) 429–96.
43 Art 4 (3) TEU, formerly Art 10 TEC. See generally: J Temple Lang, ‘The Duties of National
Authorities under Community Constitutional Law’ (1998) 23 ELR 109.

Voluntary Uses of Foreign Law 33
At least for the courts of last instance, there is the duty to compare their interpret-
ation of a provision of EU law with the interpretation reached by the courts of other
Member States when assessing whether or not they are bound to submit a request
for a preliminary ruling pursuant to Article 267 (3) TFEU. In the words of the
Court of Justice, national courts of last instance shall make sure that a matter of
interpretation of EU law ‘is equally obvious to the courts of the other Member
States and to the Court of Justice’.44 It thus appears that, as far as the requirements
of the Court of Justice are concerned, national courts would be well advised to use
the argumentative help and inspiration from the decision of their colleagues in
other Member States. On the other hand, courts of last instance are under a duty to
consider the decisions on the same matters issued by their counterparts in other
Member States. Such uses of foreign law are therefore advisable.
3. Voluntary Uses of Foreign Law

The category of voluntary references is a left-over category. It regroups all the uses
of and references to all legal materials that are outside the box of domestic law and
that do not fall into any of either mandatory or advisable types of uses of foreign
law. The typical scenario in this category entails a purely domestic case, where there
is no mandatory international/foreign/European element involved, but the court
still considers legislation, case law, or scholarly works from other jurisdictions.
For the purposes of discussion later in this book, the advisable and the voluntary
references will be merged into one category of non-mandatory references. This book
studies the patterns of foreign persuasive authority in judicial decision-making.
Foreign persuasive authority45 is everything to which the domestic judge is not
compulsorily directed by the commands of the domestic legal system. The key
common element for the non-mandatory references to foreign sources is the choice
of the national judge to use the foreign as a source of inspiration for devising a
solution and/or justifying a solution.
The categories outlined above are obviously not watertight in the sense that
within one category there would always be just mandatory foreign and in the other
only non-mandatory foreign. A mixture of elements may be present. As was
demonstrated for instance with respect to the conflict of laws scenario, within the
same case there might be compulsory consideration of foreign law alongside non-
mandatory inspiration. Equally, a lot will depend on the precise normative position
of the respective legal system studied, especially with respect to the various types of
entry of public international law into the domestic legal system etc. The above
offered typology thus represents a certain abstraction and as such an inevitable
44 Case 283/81, CILFIT [1982] ECR 3415 [16]. Further see, eg: M Broberg and N Fenger,
Preliminary References to the European Court of Justice (OUP 2010) 247 and 265. See also Case C-495/
03, Intermodal Transports BV [2005] ECR I-8151.
45 The jurisprudential challenges to the notion of persuasive authority and to its indeterminacy and
vagueness are addressed in ch 11, section 4.1.

idealization of the European domestic legal systems today and their approach to the
various types of foreign law in national courts.
In spite of these caveats, it is nonetheless suggested that the roadmap outlined
above offers a solid starting point for mapping the genuine influence of foreign
authority on domestic judicial decision-making. It allows assessment of the real
degree of judicial openness to foreign sources, the defining element of which is
judicial choice to engage with the foreign, not the domestic legislative imperative
coupled with coercion to apply the foreign.
4. Non-mandatory Uses of Foreign Law and Legal Comparisons

Apart from the types of uses of foreign law in the national judicial forum, there is a
second element which is important to this study and which should be introduced
here: the comparison. So far, the discussion of the typology of uses of foreign law in
courts has focused on the normative position taken by the national legal order
towards the various types of foreign law. Three kinds of foreign emerged: manda-
tory, advisable, and voluntary. What, however, is the relationship between the
notion of foreign law and comparative reasoning?
A comparison is seen as the construction of relations of similarity or dissimilarity
between different matters or facts. It is a triadic relationship between two (or more)
objects and a certain quality, the tertium comparationis.46 A comparison used in the
process of judicial reasoning means that the judge contrasts the applicable law,
which is most often the domestic law, with the norms of a foreign legal system(s).
The conclusion drawn from such comparison is then employed in further
reasoning.
Not every use of foreign law involves comparisons. In most of the categories
identified above as mandatory uses of foreign law, there is no comparison going on
at all. The domestic legal system absorbs the directly applicable sources of a foreign
normative system. They are given the normative quality of law under the national
system and enforced therein. Moreover, in situations of direct domestic application
of foreign norms of international, EU, or ECHR law, the mental process of
comparison would be also practically excluded for the simple reason that there
may not even be a corresponding mirror provision of national law which could be
compared with the foreign.
In contrast, the mental process of comparison will typically be present in non-
mandatory considerations of foreign law. In these cases, the domestic rules or social
facts are being compared with a corresponding foreign provisions or reality in other
legal systems. On the basis of such comparison, claims are made about the proper
interpretation of the domestic legal provision. Moreover, again on the practical
plane, in instances of non-mandatory uses of foreign law, there will typically be two
sets of applicable rules which then can be compared: the domestic and the foreign.
46 See, eg: N Jansen, ‘Comparative Law and Comparative Knowledge’ in M Reimann and
R Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2006) 310.
Non-mandatory Uses of Foreign Law and Legal Comparisons 35
In almost all cases therefore,47 the category of non-mandatory uses of foreign law
overlaps with some sort of comparative argument being advanced in the judicial
reasoning. That is what permits, in the following parts of this study, the use of the
terms comparative reasoning or comparative inspiration interchangeably with the
category of non-mandatory uses of foreign law.
In the normal judicial day-to-day practice, a comparison may not be always
clearly articulated or methodologically very sound. It will frequently be rather
implied than genuinely carried out, often in the form of a fleeting statement
suggesting that the legal provisions in country B are different/the same/better
than those in the domestic legal order, without any clear conclusions being
drawn therefrom. With some generosity, one may nonetheless assume that the
type of argument which is supposed to be advanced is a basic, albeit embryonic,
comparative argument.
Finally, for the purposes of this study, a comparison might be carried out with
respect to any distinct foreign legal system, irrespective of whether it is another
national legal system, the general international legal order, or a particular inter-
national law regime. In other words, it does not matter whether the reference to
a foreign normative system is horizontal (to another similar system), vertical (to a
superior system but outside its field of application), or diagonal (to an international
regime but to which the unit does not belong). The key element is that such a
reference falls into the non-mandatory type of the uses of foreign law.
47 The only notable exception being the comparisons carried out within the framework of mutual
recognition or extradition scenarios, discussed above in section 1.2 of this chapter, where comparative
considerations fall under the category of mandatory uses of foreign law.
3
Factors Influencing the Use of Comparative
Arguments by Courts
Whether or not judges use comparative arguments is determined by a complex

interplay of a number of legal and extra-legal factors within each legal system. This
chapter introduces and discusses a number of such factors, which influence the
likelihood of the use of comparative reasoning within judicial decision-making at
the national level. The factors have been distilled from the individual case studies in
the second part of this book. They have been regrouped in four areas: general,
institutional, procedural, and human factors. The closing two sections of this
chapter discuss two specific, domain-dependent issues: first, whether it makes any
difference, for the likelihood of the use of comparative reasoning, if the dispute at
hand pertains to the area of private law or public law. Secondly, the final section
addresses the same question with respect to the area of constitutional adjudication
and human rights.
1. Introduction: Of Abstract Models and Causality
Several remarks are due before entering the discussion proper. First, the key
practical elements determining the judicial willingness to make use of any compara-
tive inspiration could also be put very succinctly, in fact in just three words: time,
access, and understanding. A majority of judges will arguably be happy to draw
inspiration from additional yet relevant foreign materials provided that there is
time, foreign sources are accessible, including linguistic accessibility, and one is able
to at least somewhat understand the materials at hand.
Such narrative, often presented by judges themselves when being asked as to why
they do not carry out more comparative analysis in their decision-making, is
nonetheless a bit too sketchy. Such ideal conditions are in fact never present. At
the same time, however, judges still occasionally find the extra energy and appetite
to look beyond national borders. The discussion in this chapter therefore seeks to
move beyond such obvious answers. It identifies factors which may generate a little
more time, ease access, but also stimulate judicial interest in and understanding of
foreign inspiration.
Secondly, the list of identified factors is illustrative only. Additional factors could
certainly be identified or those described below framed or labelled differently. An
Introduction: Of Abstract Models and Causality 37
example of other factors which have been examined but ultimately rejected are, for
instance, dissenting opinions. The existence of dissenting opinions within a court is
believed to increase the discursive nature of judicial decision-making and conse-
quently also the range of materials used and discussed.1 Furthermore, comparative
arguments are believed to be typically those of a critical, discontent minority, who
use them to challenge the mainstream national opinion. It could thus be assumed
that the existence of dissenting opinions might be a procedural factor for greater use
of comparative arguments. However, no visible connection was discerned between
the dissenting opinions and likelihood of comparative arguments. Comparative
arguments serve, as in fact any other argument, both: the minority as well as
majority. They may be the object of disagreement between the majority and the
minority.
Thirdly, the factors identified are primarily inward-oriented. They focus on the
internal functioning of national legal systems and seek to identify when a court may
be inclined to use comparative arguments. The factors in this chapter are not
concerned with the more outward-oriented questions as to the how and where an
appropriate external authority will later on be identified. It is believed that the if or
when generally precedes the where or who? Metaphorically speaking, one normally
tends to (internally) assess whether one needs a new car before going out and
(externally) shopping for a make and a model.2
Fourthly, the identified factors internal to a legal system or institution examine
the general, systemic openness to comparative arguments in judicial decision-
making. They are concerned with the likelihood of comparative arguments being
raised, discussed, and weighed in a court. Such systemic need and openness do not
necessarily overlap with the eventual display of such comparative arguments in the
final judicial decision. In other words, the further discussed factors are fully
applicable even to systems which do not display any comparative arguments in
judicial decisions themselves.3
Finally, it may appear somewhat odd to include a list of factors, distilled from a
number of case studies, before the studies themselves. Equally, if such a list of
factors is put together, it should be presented as a series of hypotheses and ought to
be either proved or disproved by the ensuing case studies. Ideally, broader causal
conclusions should be offered: provided that there is more X present within the
national legal system, then the use of comparative reasoning is bound to increase/
decrease.
1 It has been suggested that in Anglo-American legal systems, there may be a correlation between
the number of concurring/dissenting opinions and the likelihood of comparative reasoning—B

Flanagan and S Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common
Law Supreme Court Judges’ (2011) 60 ICLQ 1, 26–7. However, both the number of opinions filed
and the use of comparative arguments are in fact consequences of the presence of a complex and
contentious case. They are thus both a consequence of a third factor, but hardly the cause for each other.
2 The regressive effect the identification of an attractive shiny new car may have on the ‘objectivity’
of one’s assessment of the need for it is certainly acknowledged. The same might be true in cases when
the authority and weight of an external system reaches such a level that the model will be invoked
(displayed) irrespective of its real use and contribution. See further ch 12, section 3 and ch 14, section 2.
3 In further detail see especially: ch 6, section 1 (France) and ch 9, section 2.1 (Slovakia).
38 Factors Influencing the Use of Comparative Arguments
This book advisedly refrains from doing so. The factors presented in this chapter
are not hypotheses to be empirically tested in the second part of this study. They
simply provide an introduction to the case studies in the second part of this book,
setting out general conditions in which supreme jurisdictions operate in today’s
Europe. The principal reason for such caution is the acknowledged diversity and
the multi-layered complexity of the systems studied. To make, across such diversity
of systems, a conclusive causal statement is impossible without in fact creating
abstract models, which have only little to do with reality. The discussion would
become too abstract and reductionist as to border on irrelevant. All that can be
offered are general suggestions of correlation, but not a proof of causality.
To give just one example: it could generally be assumed that if, within a
national supreme court, there is a dedicated research and analytical department,
which has the capacity to provide judges of that court with advice on foreign law,
the judicial use of comparative arguments is bound to increase. However, in the
complex fabric of national supreme judicial institutions, there typically are other
intervening factors, which make a claim of causality between the existence of such
specialized assistance and the frequency of the use of foreign inspiration impos-
sible to establish and to prove on the level of a general proposition. Thus, even if
there is a research and analytical department within a supreme court, it is possible
that the use of comparative reasoning will not increase, for a number of different
reasons, procedural and institutional. For instance, the court in question might
hardly ever use comparative arguments because the procedure before it is bound
by short and strict deadlines which precludes any deeper comparative study in an
individual case (as, for example, is the case with the French Conseil constitutionnel).
Alternatively, the national judicial style might preclude any direct citation of any
sources other than the national legislation (both French supreme jurisdictions—
Cour de cassation and Conseil d’Etat, but also Slovak ordinary courts) and thus
generate a disincentive for judges to undertake any comparative studies they
cannot argumentatively use anyway. Or it might be that the research and analy-
tical file containing comparative arguments is available only for internal deliber-
ations of the supreme court, but never disclosed or reflected in the written
decision, which can reflect only materials discussed by the court in oral hearings
and pleadings of the parties (frequently the case of the German Bundesverfassungs-
gericht). Finally, in some jurisdictions, a department labelled ‘analytical’ may be
comprised just of IT staff and secretaries and its activity in fact limited to
administering the website and case law database, plus publishing the court reports,
but doing in reality no independent research and analysis. Conversely, a number
of supreme courts which do not have any research and analytical departments are
using comparative arguments which are brought into the case either by some
judges, other support staff within the court (judicial clerks of référendaires), or by
the parties or amici curiae.
In short, real-life patterns in complex environments studied comparatively are
impossible to squeeze into sweeping abstract causal claims, provided they are still to
reflect the reality. The patterns are largely chaotic, defying single causal relation-
ships: the combination of several simple rules and extreme sensitivity to a number
General Factors 39
of other factors create an infinite variety of patterns.4 At the same time, however,
realism and a glance at the actual practice of comparative reasoning in European
courts is one of the defining elements of this study, the aim of which is deliberately
not to create yet another ideal(ized) abstract model of the judicial approach to
comparative law. Thus, the best that can be offered and will be offered in this
chapter with respect to factors influencing the use of comparative arguments
by courts are statements of correlation (all things being equal, factor X is likely
to have an impact), not statements of causation (if there is more X, then there will
be more Y ).
2. General Factors
General factors relate to the entire legal system and its overall development. Three
factors will be discussed here: the political influence on judicial comparisons; the
size of a jurisdiction; and the age of a jurisdiction. Conversely, two factors, which
could be said to be general in nature, are missing from the list: legal culture (or
tradition) and judicial culture (or judicial ideology). The term legal culture is
avoided because of its lack of analytical sharpness. Legal culture is a vague, umbrella
term, which may include, depending on the various (and often very diverging)
definitions,5 a number of individual elements and factors. The same applies to legal
tradition.6 Such overbroad notions are therefore hardly helpful in seeking to
disentangle incentives for certain behaviour, the use of comparative reasoning,
within a given legal system.
On the other hand, judicial culture or judicial ideology prevailing within a
system could be seen as a general factor, or, on its micro-level, as a human factor
relating to an individual judge. How judges perceive their role within a legal system
is indeed of crucial importance for their openness to comparative arguments. Judges
seeing their role as limited to upholding exclusively national values as expressed in
legislation will hardly be interested in comparative inspiration. However, judicial
ideology is an overreaching philosophical motivation for judicial (in)action, by its
nature different from the mix of functional, structural, and pragmatic elements
present within a legal system and discussed in this chapter. It is therefore dealt with
in greater detail separately further on.7
4 This does not mean, however, that there are no rules or no internal logic at all: they just operate on
a different level of abstraction. See further ch 13, section 4.

5 See, eg: D Nelken, ‘Defining and Using the Concept of Legal Culture’ in E Örücü and D Nelken
(eds), Comparative Law: A Handbook (Hart 2007); D Nelken, ‘Three Problems in Employing the
Concept of Legal Culture’ in F Bruinsma and D Nelken (eds), Explorations in Legal Cultures (Reed
Elsevier 2007); A Febbrajo, ‘Legal Cultures in Transition: A System-theory Approach’ in A Febbrajo
and W Sadurski (eds), Central and Eastern Europe After Transition: Towards a New Socio-legal Semantics
(Ashgate 2010).
6 See, eg: HP Glenn, Legal Traditions of the World (4th edn, OUP 2010) 3ff.
7 In particular in ch 11, section 1, but also ch 14, section 3.
2.1. The Political and the Legal

With whom to compare and for what purpose is, consciously or not, a political
choice. The judicial choice whether to engage with comparative inspiration, and, if
so, with whom to engage, tends to copy political preferences present within the legal
system as to which countries or systems are endowed with authority in the domestic
forum and are therefore worth following. A study of the use of non-mandatory
foreign authority is a study on influence. Which foreign country or legal system
constitutes an authority is an issue determined, first, by previously made political
choices petrified within the legal system in the form of legal tradition, and,
secondly, by the more current political choices.
Generally, the legal follows the political, although this might occasionally
happen with some delay. In less stable systems, the tradition may change quickly,
sometimes even abruptly, following a political lead. A sad yet very illustrative
example may be offered by the changes in comparative authority in Central
European countries in the course of the 20th century, which was entirely depend-
ent on the changes in the political regimes in the region. If one takes the example of
the Czech Republic, then the legal authority at the beginning of the 20th century
was Austria or other parts of the Austro-Hungarian Empire to which the country
then still belonged. In the 1920s and 1930s, the comparative inspiration became
more diversified, taking on board, apart from Austria, also countries like France,
Germany, or Italy. In the first half of 1940s, the only (permitted) authority was the
German one. By the end of the 1940s, the only authority to which the legal system
was allowed to refer itself to was the Soviet Union. From the 1960s, the picture
diversified, allowing for limited comparisons with other socialist countries and to a
very limited extent also with the capitalist ones. After 1989, comparisons became
once again multi-polar, with however a distinct German influence.
Comparability is a question of a value judgement, which is politically loaded.8
Political factors still matter, even within the Europe of today. The judiciary is likely
to share the general (geo)political convictions present within a legal system as to
with which systems are proper and acceptable comparisons. The existence of such
political factors, if detected, is outlined in the case studies. For instance, taking into
account the sometimes problematic relationship between Slovakia and Hungary
and the unresolved issue of a considerable Hungarian minority on the territory of
southern Slovakia, Slovak courts are cautious in openly citing Hungarian courts as
authority. Similarly, the preferred point of comparison for the German legal world
in the middle of the 19th century as well as after the end of the Second World War
was the USA; in both instances, the choice of the comparator had a clear political
8 By way of historical excursus, one may refer to the endless pages written in the period between the
1960s and 1980s on the question of the mere possibility of comparability of laws of socialist and non-
socialist (ie capitalist or third-world) countries, which were, and not just from within the socialist bloc,
carried out in deeply ideological fashion. See eg: HJ Bartels, Methode und Gegenstand intersystemarer
Rechtsvergleichung (Mohr Siebeck 1982) or U Drobnig, ‘The Comparability of Socialist and Non-
Socialist Systems of Law’ (1977) 3 Tel Aviv University Studies in Law 45.
General Factors 41
undertone. Equally, the political uncertainly and indecisiveness of the United

Kingdom, split between the marriage out of necessity (but apparently with little
love or affection) with Continental Europe within the European Union on the one
hand and attachments to the overseas dominions and former colonies on the other
hand, is faithfully reflected in patterns of the use of foreign inspiration in the
English courts. Finally, a chapter in itself is the deeply political controversy of the
use of foreign law in the US courts, which has spilled over into the legal domain.
Thus, in spite of the unremitting efforts of parts of the comparative law
scholarship to present comparative law as an objective, almost mathematical
science, devoid of personal, political choices, the opposite is true, certainly as far
as the judicial use of comparative arguments is concerned. However, judges do not
generally make such choices themselves. They tend to follow the political lead
already present within the legal system.9
2.2. The Size

The smaller the jurisdiction, the more open it is likely to be to comparative
arguments for the purpose of interpretation of the domestic law, essentially for
two reasons. First, small jurisdictions are less likely to devise new laws themselves.
They tend to copy and adapt foreign solutions, as the costs of original legislative
drafting are considerable. In a way, therefore, courts in small jurisdictions are
already legislatively predetermined to look abroad towards the parent laws, on
which the new domestic legislation was modelled. A fair portion of legal interpret-
ation in such systems would thus find itself within the group of advisable uses of
foreign law.10
Second, in small jurisdictions, not so many cases are litigated. This is not just an
issue of number of courts and cases they decide; it is also about incentives to litigate
and the number of significant litigants established within a given jurisdiction,
certainly when all the states are part of a greater economic unity, such as is the
EU. Strategic litigation raising new or contentious issues is unlikely to be brought
before courts in small jurisdictions, as interests of larger commercial players or non-
governmental organizations tend to be concentrated in larger jurisdictions. In cases
when such issues eventually reach the supreme judicial level in a small jurisdiction,
it is very likely that a similar question has already been addressed elsewhere.
Size matters not just with respect to the number of courts and cases litigated, but
also with respect to the size of national legal scholarship. Larger countries have a
larger scholarly community which generates a greater amount of more diverse
scholarship. A national court in a larger jurisdiction may thus have a palette of
opinions and solutions already discussed in the national scholarship and may
9 Further on judicial choices in comparisons and their ‘objectivity’, see ch 13, sections 2 and 3.
10 A distinct example of a small country virtually running on foreign case law is Luxembourg. See:
M Elvinger, ‘Le recours, par le juridictions luxembourgeoises, aux techniques de droit comparé dans
l’interprétation et application du droit luxembourgeois’ in U Drobnig and S Van Erp (eds), The Use of
Comparative Law by Courts (Kluwer 1999) 232.
therefore feel less need to look for inspiration abroad. Conversely, in a small
country where there is just one or perhaps two commentaries on the basic codes
or fields of law and very little scholarly debate, foreign inspiration may become a
practical necessity. The findings with respect to the larger and smaller Continental
systems, which acknowledge the pre-eminence of scholarly writing for comparative
exchange, appear to confirm to some extent this suggestion. Courts in larger
countries with established and considerable national legal scholarship, like Ger-
many or France, may rely more on comparative elements in national scholarly
writings than can courts in the Czech Republic or Slovakia.
Finally, the existence of a larger neighbour sharing the same (or almost the same)
language opens up for the small system the knowledge of the bigger neighbour with
little or no additional costs in terms of access. A similar patter thus emerges, with,
for instance, Austria and Germany; Luxembourg and France; Belgium and France;
Ireland and the United Kingdom; and, to some extent also Slovakia and the Czech
Republic. The larger legal system tends to dominate, to greater or lesser extent, the
smaller one through a shared language, which makes the legislation, case law, and
the scholarship accessible. However, if the domination becomes too strong or too
one-sided, it might backlash, frequently with a political undertone: the larger
neighbour may still be studied and copied, but this may not be openly acknow-
ledged by a citation in a judicial decision for political reasons.
2.3. The Age

Lack of domestic materials and solutions is the driving element for comparative
inquiries not only with respect to size of a system, but also with respect to its age:
the younger the jurisdiction or an area of law within a jurisdiction, the greater the
likelihood of references to foreign law for the purpose of its interpretation and
development.
The age factor can be conceptualized on two levels: macro and micro scale. The
macro scale concerns the (dis-) continuity of an entire legal system, the rupture from
the values of the past constitutional system and legislation. It typically involves the
adoption of a new constitutional document and the gradual revision of all the areas
of law. Examples of this sort are post-Nazi Germany or post-communist Central
Europe. Notwithstanding a necessary degree of legal continuity, the newly
emerging systems, and, within these, the newly established institutions in particu-
lar, sought to rely on foreign law and comparative inspiration, which could be
temporarily used as a certain replacement for the non-existent domestic corpus of
(democratic) law.11 From the empirical evidence available, it appears that once the
domestic liberal case law is established, the references to foreign sources diminish.
Not only has the system by then produced a sufficient amount of its own case law
and other materials, but it is also likely to have established its credibility and
11 For detail, see ch 14, section 2.3.

General Factors 43
legitimacy internally as well as externally.12 In other words, the former pupil has
joined the club as a member.
However, if the age factor argument were to be taken to an extreme, then
centuries of legal continuity would eventually prevent any use of foreign inspiration
at all, because the system becomes full with its own legislation, case law, and other
materials. All the judicial capacity is spent on trying to work out the way through
the masses of domestic law. Would for instance a jurisdiction, which feels the
necessity of limiting the amount of domestic case law that is allowed to be cited as
authority in the courts,13 need to go out and look abroad for further inspiration?
Similar arguments on the fullness of the domestic legal order disregard two
aspects of the functioning of a legal order. First, no amount of case law or legislation
will ever be able to cover the entire normative landscape seamlessly. There will
always be uncertainties or gaps. Moreover, contrary to perhaps somewhat naïve
visions of legislative or case law based optimism, a greater amount of domestic legal
authorities rarely creates ‘better’ or more predictable legal regulation. It rather
causes greater uncertainty, as the abundance of case law or legislation becomes
chaotic and contradictory. The need to resolve conflicts amongst abundant domes-
tic contradictory sources may eventually lead to the same need for foreign inspir-
ation as the lack of them. Metaphorically speaking, it might sometimes be easier, or
certainly more convenient, to get a new tool from a shop across the street than
venturing into one’s backyard, where the same tool might be buried somewhere,
but difficult to find, as the backyard has turned into a scrapyard over the years.
Amusingly, the arguments of ‘fullness of domestic legal materials’ are a constant.
They reflect rather the subjective feelings of the author than any objective factors
concerning any regulatory density within a given legal system. Thus, for instance
even in 1810, at a time in which one could hardly suggest from the contemporary
point of view that there were too many laws and too much case law, Anselm von
Feuerbach explained the lack of interest in comparative studies on the part of the
‘teutsche Jurisprudenz’ (German scholarship) precisely by the same arguments, noting
that the amount of German materials was already so rich that even the most hard-
working scholars had neither the time nor the energy to study foreign sources.14
12 It is somewhat early for such a prediction with respect to Central Europe. This seemed to be,
however, the case for Germany, where the amount of reference to foreign law by the Federal Consti-
tutional Court was strongest in the 1950s, showing a clear decreasing tendency in the following
decades. The same phenomenon, however, has been noted also with respect to other countries in
transition, such as South Africa—see eg: SI Smithey, ‘A Tool, Not a Master: The Use of Foreign
Case Law in Canada and South Africa’ (2001) 34 Comparative Political Studies 1188, 1199–1200 or
U Bentele, ‘Mining for Gold: The Constitutional Court of South Africa’s Experience with Compara-
tive Constitutional Law’ (2009) 37 Georgia JICL 219, 229.
13 Compare the various bans on citation introduced in the Anglo-American legal space over the last
two decades, prohibiting amongst others the citation of unpublished or lower court cases—further see,
eg: R Munday, ‘Over-Citation: Stemming the Tide’ (2002) 166 JPN 6 (part one); (2002) JPN 29 (part
two); (2002) 166 JPN 83 (part three) with respect to England and Wales, and F Schauer, ‘Authority
and Authorities’ (2008) 94 Virginia LR 1931 with respect to the USA. Comparatively within the
common law world, see: SW Brenner, Precedent Inflation (Transaction Publishers 1992).
14 PJA von Feuerbach, ‘Blick auf die teutsche Rechtswissenschaft’ in PJA von Feuerbach, Kleine
Schriften vermischten Inhalts: Erste Abtheilung (Theodor Otto 1833) 165, which reads in the original:
The micro scale use of comparative inspiration occurs with respect to certain
areas of law within a legal system, most frequently in cases of recodification or
amendment to various areas of substantive or procedural law, such as a new code, a
legislative framework for a novel area of law. Within these specific areas of law, the
same logic outlined above with respect to macro scale changes in a legal system
applies. However, on the micro scale, the overall need for comparative analysis
might perhaps be somewhat smaller, as the legal system should typically be able to
rely more on internal analogy drawn from other areas of law within the system
itself.
3. Institutional Factors
3.1. Level of the Court in the Judicial Hierarchy
Comparative reasoning is most likely to be carried out by courts of last instance, ie
either by a supreme or by a constitutional court, for two types of reasons: insti-
tutional and pragmatic. The institutional reason takes into account the division of
tasks within a judicial system. The role of the lower courts is to focus on the
individual case: to collect the evidence correctly and apply the law in a strong
connection to the circumstances of the case and the position of the parties. The role
of the highest jurisdictions is, on the other hand, oriented more towards the system
and the legal order as a whole, typically including tasks such as the preservation of
the unity of the legal order and its further development. The character of the work
and the overall outlook of the respective jurisdictions thus differ. Supreme jurisdic-
tions have a larger mandate: to look beyond the individual judicial file and case and
see the broader picture.15
Moreover, supreme or constitutional jurisdictions are third or even fourth
instance courts. Their scope of review is limited to points of law only. It is
characteristically at the highest judicial level where disputes crystallize into one or
more contentious legal issues and where comparative analysis might be of greatest
utility. The case becomes more focused. Conversely, the utility of comparative
inspiration at the first instance, where a judge is primarily concerned with collecting
facts and putting them into the appropriate legal framework, is more limited,
although obviously not excluded.
The institutional aspect is interlinked with the pragmatic one. Comparative
analysis is, in terms of time, expertise, and resources, a demanding exercise. If
‘Unsere teutsche Jurisprudenz war an sich schon von so großem Umfange, so vielfach in ihren Theilen,
so reich an unerschöpflichen Quellen, daß auch der emsigste Fleiß für das Ausländische weder Zeit
noch Kräfte übrig hatte, wenn er nicht, um den Boden vaterländischer Literatur mit fremden Blumen
zu schmücken, die Kultur der einheimischen Früchte, die das tägliche Bedürfniß gebieterisch
foderte [sic], großen Theils vernachlässigen wollte.’
15 See generally: JA Jolowicz, ‘The Role of the Supreme Court at the National and International
Level’ in P Yessiou-Faltsi (ed), The Role of the Supreme Courts at the National and International Level
(Sakkoulas Publications 1998) or M Bobek, ‘Quality or Quantity: Re-assessing the Role of Supreme
Jurisdictions in Central Europe’ (2009) 57 AJCL 33.
Institutional Factors 45
anywhere, it tends to be systematically undertaken only in courts which have, albeit

limited, time and resources for dealing with issues of comparative law. Yet again, it
is at the level of supreme jurisdictions where human resources (analytical backup)
and also procedural tools (lesser docket, selection of cases) may be available. These
allow judges to concentrate on contentious legal issues in greater detail. There is
obviously still the constant time pressure. As Sir Konrad Schiemann put it in
response to academic calls for greater use of comparative law in courts:
I have the impression that academics tend not to be sufficiently conscious of the
unremitting pressure a judge is under to produce an adequate judgment soon rather
than a better judgment later. The lower down the judicial ladder a judge finds himself
the greater that pressure is in general. But I was very conscious of it even in the Court
of Appeal in England.16
The scope of this book is limited to the practice of last instance courts in selected
jurisdictions. No statements can therefore be offered with respect to what is
genuinely going on in terms of comparative reasoning in the lower courts in the
legal systems studied in the second part of this work. On the other hand, on the
basis of the limited access to lower courts’ decisions in the jurisdictions studied and
the available academic discussions, it may still be suggested that the opening
statement of this section is valid. It is doubtless valid with respect to lower courts
in Continental Europe. A typical first instance judge in say the Czech Republic or
Slovakia is obliged to dispose of about twenty to thirty cases every month.17
Working under such time constraints, the decisions are necessarily summary,
mostly concerned just with facts and procedure and containing very limited legal
reasoning. For any comparative considerations to appear in such a decision is
extremely unlikely.18 The situation is similar in other Continental jurisdictions,
such as Germany or France. A different situation is at hand in the English courts, in
particular the High Court. This court, even if it may function as the first instance
court for certain types of cases, is nonetheless functionally quite different from
Continental first instance courts. However, it might be suggested that the same
principles apply even to English courts: supreme jurisdictions are more likely to
engage with foreign inspiration than lower courts.
16 K Schiemann, ‘The Judge as Comparatist’ in B Markesinis and J Fedtke, Judicial Recourse to
Foreign Law: A New Source of Inspiration? (UCL Press 2006) 369.

17 The guiding figures concerning the expected judicial output vary according to the type of the
national jurisdiction (whether civil, administrative, or criminal). For instance, in the Czech Republic,
the expected monthly judicial output, ie the number of finished cases, is for a first instance judge
(mostly sitting alone) as follows: criminal judge—28 cases which ought to be closed every month; civil
judge—32 cases; administrative judge—20 cases. In Slovakia, the respective figures are: criminal
judge—17 cases closed every month; civil judge—23 cases; administrative judge—33 cases. I am
obliged to Mr František Korbel, Deputy Minister of Justice of the Czech Republic, and to Mr Vladimír
Tomaj, from the Slovak Ministry of Justice, for providing me with these figures (in personal email
correspondence with the author of 11 October 2010 and 20 October 2010 respectively).
18 In practice appearing very rarely, typically in cases of judges personally interested in other system(s),
who are therefore tempted to include comparative arguments more as a matter of their personal hobby.
The incentives tend therefore to be personal rather than institutional.
3.2. Analytical Back-up

Judges are more likely to engage with comparative arguments if they have insti-
tutional analytical support for doing so. Such a statement appears at first sight so
obvious that it should not need to be expressly stated at all. Somewhat cynically
put, the likelihood of extra work being done increases considerably once it can be
passed on to someone else. The more general question is, however, who might help
the judge in identifying relevant foreign sources?
The more legal(ist) answer is that the sources of such aid differ according to the
style of procedure. In the more adversarial systems, it is the parties that are supposed
to assist the judge. In the more inquisitorial systems, it is the judges themselves who
know all the law: iura novit curia. The parties are obliged to deliver just the facts.
The traditional publicly displayed Continental vision of a (inquisitorial) judge has
thus been one of a solitary worker, who knows all the law and has need of merely
technical support in the form of a secretary and perhaps a computer and a
photocopier.
Similar divisions are, however, no longer entirely correct. Over the last decade or
two, one may observe gradual convergence through the rise in the number of skilled
support staff within the courts, on the European Continent as well as in England.
In practice therefore, judges, especially at the supreme level, rely more and more on
expert assistance in terms of identifying and researching law, a domain previously
reserved exclusively to judges themselves. Such skilled research support from within
the courts may take on two forms. First, judges may be aided by legal assistants,
assigned to an individual judge or to a chamber. Whatever the name for such
function may be—law clerk, legal secretary, référendaire—such person is a lawyer,
either a young law graduate or, in some systems, even a junior judge from a court of
first instance.19 Second, some supreme or constitutional jurisdictions have set up
specialized research or documentation departments, which can carry out expert
research concerning comparative legal issues commissioned by the judges.
The role of auxiliary and support staff within courts has so far been subject to
studies mostly relating to the US Supreme Court and the role law clerks play in the
judicial process.20 In the Continental legal systems, there is little visible tradition of
legal assistants and no research on their impact. This is understandable: in systems
in which even the judge has traditionally been ‘invisible’ as a personality, the same
has been necessarily true of any judicial support staff. In England, legal assistants in
courts have even less tradition. Following Lord Woolf ’s reports on the civil law
system in 1997, however, the first few legal assistants were appointed to the civil
19 In some Continental systems, junior judges or lawyers from the ranks of public servants may
temporarily be seconded to assume an auxiliary position (conseiller référendaire, wissenschaftlicher

Mitarbeiter) at the supreme or constitutional court. The traditional idea of such secondments is
however associated rather with the gaining of experience for the younger lawyer, coupled with a vision
of later professional advancement within the judicial/administrative hierarchy.
20 Cf in particular: TC Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme
Court Law Clerk (Stanford University Press 2006); A Ward and DL Weiden, Sorcerers’ Apprentices: 100
Years of Law Clerks at the United States Supreme Court (NYU Press 2006).
division of the Court of Appeal and also to the Law Lords in the House of Lords.
From there, they started to spread gradually to other divisions of the Court of
Appeal.21
A change in the traditional perception is nonetheless on the way. It is perhaps
more visible in the newer Member States of the European Union than in the older
ones. This can be explained by the legislative shock these post-communist systems
had to endure over the last two decades. In the 1990s, avalanches of amendments
and new laws were passed overnight in order to ensure the system change. These
were coupled with the advent of the European Convention and the case law of the
ECtHR and various other international treaties and instruments. The last decade
was then characterized by the massive inflow of EU law. Such legal turbulence22
brought about departure from the (traditional Continental) assumption that judges
know the law. It also generated willingness (out of necessity) on the part of the
judges to establish points of internal aid, be it in the form of legal assistants or
specialized research units within the courts.
Following such functional and mental changes, judges rely nowadays more
frequently on their legal assistants. Equally, dedicated research and documentation
units within the supreme as well as constitutional courts keep mushrooming
throughout Europe. The difference in judicial output as far as the use of compara-
tive reasoning or, for the same matter, greater willingness to engage also in the study
of both systems of European law and international legal documents, is considerable.
A prime example in this respect might be the contrasting development in the Czech
Supreme Administrative Court, on the one hand, and the Slovak Supreme Court,
on the other. Within the reference period assessed, one can see exponential growth
in the number of instances of comparative reasoning within the Czech Supreme
Administrative Court, mostly due to the establishment of a specialized research and
documentation service within the Court and the fact that, in addition, each judge
has two personal legal assistants. On the other hand, one can hardly be surprised by
zero willingness to make any comparative excursions on the part of Slovak Supreme
Court judges, facing thousands of cases to be decided every year with no expert
support and no legal assistants.
3.3. Points of Reference, Networks, Databases

The last institutional factor, which partially spills over into the human one, is the
existence of institutionalized avenues for a comparative judicial exchange. There are
21 See generally: P Jamieson, ‘Of Judges, Judgments and Legal Assistants’ (1998) 17 CJQ 395 or
B Dickson, ‘The Processing of Appeals in the House of Lords’ (2007) 123 LQR 571. Comparative
discussion is provided by R Munday, ‘Of Law Clerks and Judicial Assistants’ (2007) 171 JPN 455.
22 In the view of the vice-president of the Czech Constitutional Court, Pavel Holländer, the speed
and frequency of the new legislation and amendments to the new legislation amounted to a ‘decon-
struction’ of the legal order—see: P Holländer, Ústavněprávní argumentace [Constitutional Legal
Reasoning] (Linde 2003) 11. However, even in the older Member States, the amount of laws and
case law flowing from different levels and the ensuing complexity has been called ‘nouveau désordre
judiciaire’. See: F Ost, Dire le droit, faire justice (Bruylant 2007) 72.
several ways in which information about foreign legal systems might be obtained
for judicial purposes: a request for information to a liaison magistrate who is
stationed in a foreign legal system might be one.23 Another might be the diplomatic
avenue, ie the formal request from the court to domestic embassies inquiring about
a certain legal point of the foreign law. These methods are, however, rather clumsy
and used perhaps only as avenues of last resort in cases when the national judge
is indeed obliged to use foreign law, for instance in private international law or
extradition cases, when there is no way around the foreign law. It is, however, hard
to imagine that any judge would use them for obtaining ‘mere’ non-mandatory
foreign inspiration.
There are, however, two other institutionalized avenues of judicial exchange
which might provide for a more flexible access to information: judicial networks
and databases set up within these networks. The academic attention paid to judicial
networks has grown considerably over the last few years, in particular within
Europe.24 It is generally believed that the greater the number of institutionalized
avenues of judicial exchange is put in place, the greater the likelihood of compara-
tive reasoning. Judges will talk to each other, exchange their views, and this
exchange will impact on their decision-making.
There is no doubt that judges, should they wish to do so, can today meet much
more often than perhaps a hundred years ago. Judicial networks and the various
judicial associations25 enable international socialization of judges. They also pro-
vide a platform for the elaboration of various comparative studies and reports.26
Additionally, most of these associations set up various information pools and
databases. Such databases of national decisions might provide an institutionally
trustworthy source of information.
23 See generally: B Rabatel, ‘Liaison Magistrates: Their Role in Comparative Law and International
Judicial Cooperation’ in G Canivet and others (eds), Comparative Law before the Courts (BIICL 2004).
24 From amongst the most recent, see notably: A Le Quinio, Recherche sur la circulation des solutions
juridiques: le recours au droit comparé par les juridictions constitutionnelles (Fondation Varenne 2011)
179–87; M Claes and M de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial
Networks’ (2012) 8 Utrecht LR 100.
25 With respect to Europe, at least six key judicial associations should be mentioned. For adminis-
trative justice, it is the Association of the Councils of State and Supreme Administrative Jurisdictions of
the EU <http://www.juradmin.eu> and the International Association of Supreme Administrative
Jurisdictions <http://www.iasaj.org>. The associations grouping the supreme courts of general juris-
diction are the Network of Presidents of the Supreme Judicial Courts of the Member States of the EU
<http://www.network-presidents.eu> and Association des Hautes Juridictions de cassation des pays
ayant en partage l’usage du français <http://www.ahjucaf.org>. The latter association, which defines
itself, as its name indicates, through the medium of the usage of the French language, also has for its
members European countries where the level of knowledge (not to speak of usage) of French in the
supreme jurisdictions is, to speak diplomatically, rather hypothetical, such as the Czech Republic,
Slovakia, or Hungary. Finally, the organizational platform for the cooperation of the European
constitutional jurisdictions is the Conference of the European Constitutional Courts <http://www.
confcoconsteu.org>. An additional forum for information exchange in constitutional matters is also
provided by the Venice Commission <http://www.venice.coe.int>.
26 For instance, the bi-annual colloquia held by the Association of the Councils of State and
Supreme Administrative Jurisdictions of the EU produce a very good comparative survey of an area of
law or a problem question, which is then circulated to all member institutions and published online
<http://www.juradmin.eu/en/colloquiums/colloq_en.html>.
However, it may be suggested that the impact of such judicial exchanges is rather
on the judicial mentality and the feeling of a greater community among at least some
national judges, not necessarily on the day-to-day judicial work in the national
courts. The genuine impact of such networks on normal judicial work tends to be
considerably exaggerated by academic fans of the ‘judicial-international’. This is to a
large extent understandable: the veiled is always believed to be of greater importance
than the naked. In such meetings, what else would the judges be talking about if not
their cases?
Having had the privilege of observing, co-organizing, and participating in inter-
national judicial cooperation within the EU for some time,27 one cannot but suggest
that most often, judges prefer to talk amongst themselves about anything other
than their cases. Moreover, pragmatically speaking, the information exchanged
or obtained in various meetings, networks, or associations is rarely of any use for
national judicial decision-making once back home.
Two particular problems are worth singling out with regard to the potential
comparative inspiration obtainable in judicial networks. There is, first, a structural
problem with the type of knowledge gained through various networks or associ-
ations: it tends to be superficial, selective, and random. Comparative reports
produced are valuable as sources of basic legal geography for widening horizons
should one wish to, but hardly helpful as sources for targeted research in searching
for an answer to a specific question. General and often selective information
provided in such studies or reports offers only little help in a case-specific query
judges have when determining cases. The various databases of the supreme juris-
dictions face similar problems: independent databases, ie those containing only
selected summaries of cases in French and English, are too selective. They typically
include just tens or hundreds of decisions, thus not enough for a problem-specific
search.28 Joint databases, ie search frames connecting several independent databases
of its members, face problems of language, which cannot be solved by machine
translation.29 Finally, the idea that a judge can obtain relevant comparative infor-
mation within any reasonable timeframe through sending requests for information
27 Between 2005 and 2009, the author was a member and later the head of the Research and
Documentation Department of the Supreme Administrative Court of the Czech Republic. One of the
tasks of the Department was managing the ‘foreign relations’ of the Court, including all matters
relating to the Court’s membership of various international associations, in particular the Association
of the Councils of State and Supreme Administrative Jurisdictions of the EU.
28 An example of such a database that is otherwise excellent is the JuriFast database <http://www.
juradmin.eu/en/jurisprudence/jurifast_en.html> of the Association of the Councils of State and

Supreme Administrative Jurisdictions of the EU, with the data supplied by the respective member
jurisdictions. The database contains hundreds of summaries of decisions, submitted by the member
jurisdictions, in which the national courts applied EU law.
29 The Common Portal of National Case Law <http://www.reseau-presidents.eu/rpcsjue>, created
by the Network of Presidents of the Supreme Judicial Courts of the Member States of the EU, is an
example of such a meta-database. The portal is a joint gateway to a number of national search portals. It
uses machine translation of legal notions in order to send queries to the national portals and then gives
a synthetic overview of all the results retrieved. The results and the accuracy of such searches are,
unfortunately, very problematic. Additionally, the results displayed are in the national languages of
each Member State (with rough machine translation available only to members).
through the various internal discussion fora or by a circular email to all members of
the network is so optimistic as to border on naivety. To offer a parallel: how many
helpful answers do academics generally receive if they send out a questionnaire on a
point they are interested in exploring comparatively for their research, if they email
it around Europe to busy professors in other countries whom they met some time
ago in a conference?
Secondly, there is the problem of (internal) translation of the international
knowledge and experience. Continental supreme jurisdictions are large institutions,
composed of tens or even of hundreds of judges. Within these institutions, it tends
to be always the same few members of the court who participate in the various
international meetings. Repetitive meetings amongst the same people for the
purpose of being represented can then barely be translated into anything internally
useful for the institution. It frequently happens that the vast majority of judges
within a court in the respective member institution do not know of which networks
or associations the respective court is in fact a member, not to speak of drawing any
applicable knowledge from it.
In sum, the various international fora, networks, meetings, and databases are an
important psychological and socializing element. For at least some members within
the supreme jurisdiction, they may indeed generate the feeling of broader commu-
nity. Their practical utility for obtaining applicable comparative knowledge for
solving a concrete case is, nonetheless, very, very limited.30
4. Procedural Factors
4.1. Cases Selection
The more cases a court is supposed to adjudicate upon each year, the less the
willingness on its part to engage in any comparative exercise. If a court has the time
and resources to focus on just tens of decisions on merits to be given every year,
then the argumentative quality of the decision as well as the pool of potential
sources rise. More comparative reasoning is likely to be carried out in supreme
jurisdictions whose acknowledged role is to further develop the law, not to revise on
merits every case that reaches the court. In order to be able to realize such a
function, supreme jurisdictions of this type will be entitled to select the cases
they wish to hear.31
On the one hand, the difference in the amount of comparative inspiration
between the courts which select the cases they will hear, such as the United
30 To put the same point differently: there are a number of jurisdictions represented in various
networks and associations, but the impact of this fact on their internal decision-making is hardly
visible, if there is any at all. On the other hand, there are jurisdictions, which for political reasons do
not network at all, but are, at the same time, quantitative champions of the use of comparative
reasoning. A striking example in this respect is Taiwan—see: DS Law and WC Chang, ‘The Limits of
Transnational Judicial Dialogue’ (2011) 86 Washington LR 523.
31 Further see Jolowicz (n 15) 39ff.
Procedural Factors 51
Kingdom Supreme Court (previously the Appellate Committee of the House of

Lords), and those which do not, which are essentially all the other courts studied
here, is indeed visible. On the other hand, the difference is not so essential as to
preclude Continental supreme jurisdictions, which would typically be called on to
dispose of thousands or even tens of thousands of cases every year, from reasoning
comparatively at all. The explanation lies perhaps in the fact that first, even if a
jurisdiction is not openly given the competence to select the cases it wishes to hear,
it will devise, out of necessity, more covert ways of summarily disposing of the
majority of cases.32 Secondly, notwithstanding that the total number of cases in
which such a jurisdiction will go into greater depth is perhaps smaller than before a
court which selects its docket openly, some time and energy will still be reserved for
a few selected complex cases, in which comparative reasoning may appear. Thus,
case selection is an important factor, but not a determining one.
4.2. Activity of the Parties

Is the activity of the parties vital for a comparative law aspect to be brought into the
dispute? It is generally assumed that judges will hardly find the appropriate time to
carry out comparative legal research themselves. This would then mean, by impli-
cation, that comparative legal arguments are more likely to be raised in more
adversarial systems of procedure, where greater reliance is generally put on the
parties. If parties are used to presenting lengthy briefs and voluminous materials to
the court anyway,33 it is quite likely that some comparative consideration might
appear in such a bundle as well. On the other hand, in systems which rely more on
the inquisitorial procedure, judicial energy tends to be mostly spent on identifying
the applicable law with little energy left for expeditions into the realm of additional,
non-mandatory inspiration.
To identify a clear and general connection between parties’ activity and the
judicial use of comparative arguments is difficult. The only visible correlation that
could be identified in the various case studies was the varying degree to which a
court feels bound by the arguments raised by the parties, including comparative
arguments. In the more adversarial English system, it appears unlikely that once a
party had made a distinct argument based on comparative law that the court would
not respond to it, even in a very concise or dismissive way. On the other hand,
within some of the Continental systems studied, most notably Slovakia, there are a
number of cases in which comparative arguments are raised by the parties but the
court remains completely silent on them.34
32 Bobek (n 15) 37–8.

33 As for instance in the English courts—compare a case study on this issue in M Brooke and
others, ‘The Use of Comparative Law in A & Others v National Blood Authority’ in Canivet (n 23).
34 One has to be nonetheless aware of the sometimes very laconic style of some of the applications
submitted to a civilian court, which would appear strange to a common law lawyer. An application to a
supreme jurisdiction frequently has not more than four or five pages (the application itself, evidence
excluded). A comparative reference contained within such a document would be very brief, often in the
form of an unspecified reference to the situation in Germany or elsewhere. Under such circumstances,
The distinguishing point is thus not necessarily whether in one system the parties
are more likely to run a comparative argument, but rather how faithful and
responsive a court is with respect to the arguments raised by the parties. In the
more adversarial system, the reasoning of the court is more likely to faithfully
mirror the submissions of the parties. In the inquisitorial system, this relationship is
much looser.
The looser connection between the submissions of the parties and the legal
points contained in the decision of the court may, with respect to comparative
reasoning, function both ways. In the Continental systems studied, it is not
uncommon for a court to start running comparative arguments entirely on its
own. To a common law lawyer, this may appear problematic, especially if the
parties were to see comparative arguments for the first time in the judgment of the
court and did not previously have the opportunity to submit their observation with
respect to them. Such objection ignores, however, the fact that comparative analysis
is just a non-mandatory aid to the interpretation. It is of the same standing as
citation of scholarly writings or policy arguments, ie not anything with respect to
which the parties, at least in the more inquisitorial Continental system, would be
entitled to submit their observations.
Finally, parties’ activity with respect to comparative legal arguments is connected
with who the party is. In some of the Continental systems (Germany, Czech
Republic, Slovakia), the greatest likelihood of a party submitting comparative
considerations to the court will be in cases when one of the parties is a larger
institutional player, typically the national government, ministries, or chambers of
parliament. This phenomenon is not difficult to understand: in practice, it is either
major institutions or economically well-situated litigants who are in the position to
carry out comparative studies to such a level as to invite a serious response on the
part of the supreme or constitutional jurisdiction.35
4.3. Amicus curiae

An additional factor related to the activity of parties is the (non-) existence of
amicus curiae briefs or, more generally, the possibility of third party intervention, ie
the procedural possibility of allowing persons other than the applicant/respondent
to submit observations to the court. Once more actors (institutions, non-
governmental organizations, private entities, etc) are allowed to submit their
observations, it may be assumed that the probability of comparative points being
submitted to the court rises.
it is hardly surprising that a court does not feel much inclined to engage with similar rather speculative
and not much substantiated arguments.
35 A common scenario in such cases is the government elaborating in-house or commissioning out
(to the various Max-Planck-Institutes in Germany or the relevant departments of the Academy of
Science or other scientific institutions in other states) a comparative study, which is later submitted as a
part of its observations to the respective court.
Procedural Factors 53
The assumption about third party intervention/amicus curiae as a tool for

bringing in more comparative arguments is not based just on the simple adding-
up strategy, believing that more submissions to the court means more material. It is
based on the quality of entities who tend to be the interveners. Especially in
constitutional or human rights litigation, it is (inter)national non-governmental
organizations which seek to appear in courts as interveners. Such organizations tend
to advance a certain agenda of liberalization with the help of foreign examples. On
the practical level also, such organizations often have solid access to the knowledge
about foreign legal systems.36
Within the Continental jurisdictions studied further on, there is not much
tradition of third party intervention or amicus curiae briefs. The principal reason
within the Germanic legal systems is the very restrictive rules on standing and, by
analogy, on intervention. In public law litigation, in order to be a party to a dispute,
the applicants must demonstrate the violation of their subjective public rights.37
This yardstick cannot be met by non-governmental organizations, as they have no
subjective rights at stake. Some of the courts, however, especially constitutional
ones, have parted somewhat from these traditional conceptions and allow third
party briefs. In such situations, the above-outlined greater comparative legal input
by some of the interveners is detectable.38
4.4. Costs of Litigation

Cost-related considerations play some role in assessing the likelihood of compara-
tive law arguments being raised, especially by the parties. They can be assessed on
two levels: first, on the level of the costs of the litigation in the narrow sense, ie
pecuniary costs, incurred by the parties. Second, ‘costs’ of a case may be also
understood in a broader sense, including considerations like the overall importance
of the case, its political and societal significance, controversy surrounding it and its
societal reception, and not limited strictly to the parties, but all actors in the
litigation.
Generally, it could be suggested that the greater the costs of a case, the greater the
likelihood of comparative reasoning appearing within the process at some stage. As
far as the costs of the litigation in the narrow sense are concerned, it appears that
36 They may be either a branch of an international non-governmental organization (eg Human
Rights Watch, Transparency International, Greenpeace, and many others) or they are likely to have
international contacts within subject-specific networks of NGOs.
37 See generally: F Schoch, ‘Gerichtliche Verwaltungskontrollen’ in W Hoffmann-Riem and others
(eds), Grundlagen des Verwaltungsrechts: Band III (CH Beck 2009) 766ff. On the historical evolution of
the notion, see H Coing, ‘Zur Geschichte des Begriffs “subjektives Recht” ’ in H Coing, Gesammelte
Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: Band I (Klostermann 1982).
38 The Czech Constitutional Court, for instance, allowed for the first amicus curiae brief ever in an
abstract review of a constitutionality case in 2006—judgment of 26 April 2006, Pl. ÚS 37/04, no 419/
2006 Coll. The case concerned the constitutionality of the passing on of the burden of proof in cases of
alleged racial discrimination. The Court allowed the European Roma Rights Centre from Budapest to
intervene in support of the constitutionality of the attacked provisions. In its submission, the Centre
drew the Court’s attention to a number of international, European, and comparative legal materials.
The reference to some of them then also appeared in the decision of the Court.
comparative arguments are more likely to be raised in jurisdictions with overall high
costs of litigation. Conversely, if the costs of legal representation in a given system
are quite low, the parties may not be interested in augmenting them by looking for
additional persuasive arguments abroad.39 Furthermore, in individual cases, logic of
sunk costs is relevant: the higher the stakes and/or higher costs already incurred, the
more likely comparative arguments will be made. If the case in question is a
complex case, which is anyway (already) quite expensive, the additional costs of
conducting comparative law research are perhaps not negligible, but still acceptable
for the parties.40 On the other hand, conducting comparative law research in order
to find potentially convincing arguments makes little sense in a cheap dispute, even
though perhaps it might be, from the legal point of view, quite interesting.
Costs may not involve just narrowly understood pecuniary costs for the parties,
but also broader (secondary) costs for other actors concerned. Framed in such a
general manner, the question then becomes whether the benefits of doing compara-
tive legal research and integrating it into a judicial decision outweigh the additional
costs in terms of time and resources. As far as the individual studies can be
generalized, it appears that comparative arguments tend to be raised particularly
in politically or socially loaded cases. In such cases, the costs of researching extra
materials are outweighed by the benefits of having a greater pool of inspiration and/
or external authority to rely upon. This is visible especially in the study of the
comparative reasoning in the various constitutional courts, where it is employed in
particular in heavyweight constitutional litigation, typically in cases heard as an
abstract review of statutes.
5. Human Factors
The factors in this category are the most difficult ones to identify and to evaluate.
What is the role of an important individual in creation of social phenomenon and
what is just legal and academic gossip? Does the fact that the great-great grandfather
of Sir Konrad Schiemann was the first President of the German Imperial Court and
that Schiemann himself is of German origin (educated, however, at Cambridge)
make him more open to comparative arguments? Has his background made him
39 Such assumptions could be tested perhaps only with respect to the English legal system. The
overall costs of litigation within the Continental legal systems are, by contrast, rather low. There is
obviously no limit on spending money on legal representation in any legal system. What is meant by
comparatively cheap is the overall, reasonable, and certain medium cost in getting a case through the
judicial system, in particular with respect to fixed costs (court fees). See generally: C Platto (ed),
Economic Consequences of Litigation Worldwide (Kluwer 1999) or AAS Zuckerman (ed), Civil Justice in
Crisis: Comparative Perspectives of Civil Procedure (OUP 1999).
40 This is obviously a very relativistic category. For instance, in the English case White v Jones, which
involved considerable time and energy spent on the discussion of foreign inspirations, the sum was a
quarter of a million pounds spent on legal fees for the sake of the nominal sum of GBP 18,000—see
B Markesinis, ‘Five Days in the House of Lords: Some Comparative Reflections on White v Jones’ in
B Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis (Hart 1997) 333.
Whether such a balance between costs and benefits is appropriate is open to debate.
Human Factors 55
more open to the importation of German law into the English law while he was still
a judge in the English High Court and the Court of Appeal?41 Does the fact that
Professor Pavel Holländer, a prominent member (now vice-president) of the Czech
Constitutional Court, studied in the mid-1990s with Robert Alexy in Kiel account
for the fact that the Czech Constitutional Court has copied into its own case law the
key doctrines of the Bundesverfassungsgericht? Or would it have done so anyway, as
basically in one way or another a number of the constitutional courts in post-
communist Central Europe did? Had Professor Alexander Bröstl, a known Slovak
legal philosopher and a comparative legal scholar, any influence on the quantity of
comparisons contained in the decisions of the Slovak Constitutional Court while he
was a justice in it? Does the fact that Bernard Stirn, the current president of the
Section du contentieux of the French Conseil d’Etat, co-authored a comparative
study42 mean that the judicial section of the Conseil d’Etat will now under his
presidency be more open to comparative reasoning? What role and impact did legal
émigrés have on the use of comparative law within a system which received them
during the time of their exile?43 If they ever returned and happened to become
judges as well, did they push for a greater use of comparative law, making use of the
knowledge they acquired during their time in exile at home?44 How much can
judicial biographies tell us about the education, inclination, and convictions of the
individual judge?45
Basil Markesinis and Jörg Fedtke ventured into this largely unexplored area of
judicial ‘psychobiography’. Their joint study entitled ‘Mental Disposition as a Factor
Impeding Recourse to Foreign Law’46 demonstrates the beauties as well as the pitfalls
of a similar endeavour. It is, for a start, a great study in legal realism, enabling a peek
behind the veil of judicial impartiality. Judges are depicted as personalities with
convictions, beliefs, and anxieties, which are then translated into their reasoning.
On the other hand, the piece is not much more than amusing reading. It is a mosaic
41 He himself denied that, stating that he barely knows German law and made reference to it only
once—see K Schiemann, ‘Aktuelle Einflüsse des deutschen Rechts auf die richterliche Fortbildung des
englischen Rechts’ [2003] Europarecht 17, 20.
42 B Stirn, D Fairgrieve, and M Guyomar, Droits et libertés en France et au Royame-Uni (Odile Jacob
2006).
43 See J Beatson and R Zimmermann, ‘Jurists Uprooted: German-speaking Émigré Lawyers in
Twentieth-century Britain’ (OUP 2004) and therein especially the studies by JA Jolowicz (‘Compara-
tive Law in Twentieth-century England’) and by J Beatson (‘Aliens, Enemy Aliens, and Friendly
Enemy Aliens: Britain as a Home for Émigré and Refugee Lawyers’) from which it seems that the study
of comparative law in England was, for most of the 20th century, essentially a German-run enterprise.
44 An example is provided by I Pospíšil and E Wagnerová in Vladimír Klokočka Liber Amicorum: In
memoriam emeritního soudce Ústavního soudu [Vladimír Klokočka Liber Amicorum: In Memory of a
Former Judge of the Constitutional Court] (Linde 2009) 9, suggesting that the émigré lawyer Professor
Vladimír Klokočka, who spent the 1980s teaching comparative constitutional systems in Munich, had,
upon his election to the first Czech Constitutional Court in 1993, often argumentatively used the case
law of the German Federal Constitutional Court.
45 A (traditionally critical) view on the utility of such study is offered eg by: RA Posner, ‘Judicial
Biography’ (1995) 70 NYU LR 502.

46 Title of a chapter in their joint book Judicial Recourse to Foreign Law: A New Source of Inspiration?
(UCL Press 2006); previous version of the argument was published in (2006) 80 Tulane LR 1325.
of personal views concerning (mostly) anonymous47 judges and lawyers that hardly
lends itself to any systematization or generalization.48
Judicial biographies and their interpretation for the purpose of evaluating the
contribution of an individual judge to the institutional use of comparative argu-
ments pose a problem. On the one hand, it certainly matters where judges were
educated, how many languages they speak, what gatherings, national or inter-
national, they attend, and with whom they socialize while being there. On the
other hand, these individual judges are then obliged to function within a complex
web of path-dependent institutional, procedural, and other constraints, including
getting along with other judicial personalities with different characteristics and
preferences.
This tension translates, on a more general level, into the on-going and never-
ending debate on the role of the individual in shaping an institution and vice versa.
One extreme vision was put forward already by Max Weber in the context of his
discussion of modern law and administration. It could be called an institutional
approach. It suggests that it is the institution which decisively forms the individual.
The individual is portrayed as being fully dominated by the institution and almost
devoid of any free will or choice.49 The opposite extreme could be labelled an
individualistic approach. In a somewhat sweeping variety of legal realism, it over-
rates the influence an individual has on the institution, thereby negating any
formative impact an institution, its procedures, and internal culture have on the
individual.
The reality will most likely be somewhere in the middle. Strong persons will
leave their footprints in the institutional design. However, provided that the influ-
ence was indeed significant, it will eventually be translated into an objective
characteristic of the institutional structure or behaviour. In short, judicial bio-
graphies are best perceived as a factor influencing the use of comparative reasoning
by courts, not the factor.
Moreover, on a more practical level, it should be also born in mind that writing a
judicial decision, especially at the supreme level, is nowadays a collective enterprise.
47 Markesinis and Fedtke, Judicial Recourse to Foreign Law (n 46) 176. It is stated that in their
chapter, the authors adopted the policy of anonymity. They speak in general terms and the statements
are not attributed to individual lawyers. If one takes into account the often unflattering statements
made about some of the objects of their study, such an approach is understandable. However, the
policy of anonymity makes the statements of authors impossible to verify or to rebut in any way.
Interestingly, in those cases when authors’ reflections on personalities of comparative law were not
anonymous, such as in the case of late Professor René David, the reactions to their views were
presumably not always sympathetic—cf the preface to their most recent book Engaging with Foreign
Law (Hart 2009) vii, from which it appears that the son of René David reacted with disagreement to
their previous statements about the work and the views of his late father.
48 For similar type of problems in connecting individual judicial biographies to actual decision-
making see D Piana and C Guarnieri, ‘Bringing the Outside Inside: Macro and Micro Factors to Put
the Dialogue amongst Highest Courts in its Right Context’ (2012) 8 Utrecht LR 139.
49 M Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (5th edn, Mohr
Siebeck 1980) 129, uses the term ‘Herrschaft der formalistischen Unpersönlichkeit’ (rule of formalized
impersonality), for the sake of which the ideal official suppressed any personal conviction, preference,
or ideology.
Comparisons in Private and in Public Law 57
In spite of the fact that there will obviously be one reporting judge, the final text is
the product of several people, at least the members of the senate or chamber. Even
more importantly, fewer judicial opinions tend to be written (entirely) by judges
themselves. More and more work is delegated to legal assistants and other support
staff within the courts. These may put their personal preferences and style into a
draft decision, without their input being in any way accounted for and formally
distinguishable from the opinion of the judge. To provide just one illustration: in
doing empirical research in, for instance, one of the constitutional courts in Central
Europe, one may encounter judgments extensively quoting from foreign literature
or case law of the European courts, which are accessible only in French or English,
formally authored by judges who do not speak either of these foreign languages.
In the following case studies, human factors in the form of individual judicial
biographies and backgrounds were taken into account to a limited extent only, in
particular in two scenarios: first, if individuals were so important and so imposing as
to indeed leave an imprint within the entire institutional structure. Secondly, the
individual input has also been noted in cases in which the use of comparative
inspiration within a given institution was in fact more of an individual ‘deviation’,
with all the detectable instances of comparative inspiration being in fact attributable
to just one or two individual judges within the court.
6. Comparisons in Private and in Public Law
Are judicial comparisons more likely to be found in the area of private law (for
instance issues of family law, contract, or tort) or in the area of public law (for
instance standards for judicial review of acts of public administration, social
security, or taxation)? Or does the fact of whether a case pertains to the private or
public law domain50 make no difference in the likelihood of the use of comparative
arguments by courts?
The history of modern comparative law appears to be predominantly a history of
private comparative law, with the private law agenda already being set at the Paris
Congress in 1900.51 It is widely believed that most comparative law and ensuing
judicial borrowings are likely to occur in the area of private law.52 This is due to the
fact that public law, especially constitutional law, reflects the history, the values,
and choices of each society and is therefore unique and hardly transferable:
‘Societies largely invent their constitutions, their political and administrative
50 The precise definitions of what is private and public law may naturally differ across the systems—
see generally: EJ Weinrib, The Idea of Private Law (Harvard University Press 1995); O Dawn, Common
Values and the Public-Private Divide (Butterworths 1999).
51 See generally: LJ Constantinesco, Rechtsvergleichung: Band I (Carl Heymanns 1971) 161ff;
R Zimmermann, Die Europäisierung des Privatrechts und die Rechtsvergleichung (De Gruyter 2006) 10ff.
52 See, eg: M Rosenfeld and A Sajó, ‘Introduction’ in M Rosenfeld and A Sajó (eds), The Oxford
Handbook of Comparative Constitutional Law (OUP 2012) 2. Critically J Ziller, ‘Public Law’ in JM
Smits (ed), The Elgar Encyclopedia of Comparative Law (Edward Elgar 2006) 603–4.
systems, even in these days their economies: but their private law is nearly always
taken from others.’53
In similar vein, John Bell offered several explanations for the differences in the
use of comparison in public and private law.54 He suggested that comparative
public law is different in purpose, context, and subject matter from private law,
stressing the importance of public law institutions. The impact of history on
political institutions which forms public law is very significant. Public law arrange-
ments are designed in dialogue with the past and with the future. They are likely to
be nationally specific. Bell concluded that it is highly unlikely that there would be
nation-specific form of civil liability insurance; but it is highly likely that there
would be nation-specific regimes of social insurance and welfare schemes.
Bell’s argument can, however, be challenged on a number of grounds. One may
question the assumptions concerning the difference in purpose and the core
function of public law: the limiting character of public law versus the enabling
character of private law. The distinction is largely just a question of definition and
the issue as to at what level of abstraction one defines the function of an area of law.
If one defines the function more broadly, then an equally valid claim is that the
entire legal system is a way of limiting autonomy and arbitrariness in legal
relationships. Private law has also a strong limits-setting component in itself;
some may even claim that the entire private law was designed to limit the individual
autonomy and bring more fairness into (naturally unequal) private relationships.
Bell gave examples of norms adopted in various systems of public law as a
reaction to past experience. On the basis of these examples, he suggested that the
impact of history on political institutions is very significant in public law. Public
law thus engages in a deeper dialogue with the nation’s past than private law
regulation. It is difficult to see, however, why the same dialogue with the past
reasoning would not apply to private law as well. An equally great number of
examples could be mentioned where a private law regulation was adopted in
reaction to the past, typically following a negative experience with the previous
dysfunctional legal regime. Furthermore, the current state of law in Central
European post-communist countries could be used as a counter-argument to the
various depth of regulation argument. In the Czech Republic, as well as Slovakia or
Poland, new constitutions and other key public law documents were swiftly
adopted following the fall of communist rule. Naturally, when drafting a new
constitutional document, there was considerable dialogue with the past. At the
same time, however, there was also strong influence from foreign models in
constitutional design, which were adapted and taken over.55 In the same countries,
53 SFC Milsom, Historical Foundations of the Common Law, quoted from A Watson, Legal
Transplants: An Approach to Comparative Law (2nd edn, The University of Georgia Press 1993) 8.
54 J Bell, ‘Comparing Public Law’ in A Harding and E Örücü (eds), Comparative Law in the 21st
Century (Kluwer 2002).

55 For a discussion of the Czech and Slovak experience in constitutional drafting in the early 1990s
in English, see eg: E Stein, ‘Out of the Ashes of a Federation, Two New Constitutions’ (1997) 45
AJCL 45, especially 67–9. The foreign inspiration in drafting the Czech Constitution was intention-
ally sought, inter alia, by requesting the presence of Czech émigré lawyers, experts in comparative
Comparisons in Private and in Public Law 59
however, attempts to adopt new private law codes, most notably a Civil Code and
a Code of Civil Procedure, proved very problematic, precisely because of the
on-going dialogues with past codifications and the impossibility of grafting a new
modern civil code onto the stubs of the old communist codifications. In these
particular settings, the comparison-inspired change in public and constitutional law
was more easily accomplished than changes in private law.
It may be suggested that there are no convincing arguments as to why the judicial
use of comparative law ought to be more or less possible or frequent in public or
private law. If anything, the debates on comparability in public or private law copy
the professional focus and field preference of their author. They also reflect the fact
that modern comparative law narrative has largely been presented as history of
comparative private law. But they fail to explain why judicial comparison in private
law should structurally differ from public law.56
Empirically speaking, traditional views on the limited transferability of legal
solutions in public law have been further eroded by the recent rise in the study of
comparative constitutionalism and comparative public law generally. The fall of
communist regimes in the late 1980s and the massive wave of constitutional
drafting and the reception of various institutions and procedures in Central and
Eastern Europe have meant that in these parts of Europe, comparative law has
signified predominantly public and constitutional comparative law.57 The trad-
itional balance has shifted completely in favour of public law comparisons (or, more
realistically, rather constitutional copy and pasting).
Finally, the public law national specificity thesis also appears to be lost in the
contemporary European context, especially if one takes into account the domestic
legislative impact of the law of the European Union, the Council of Europe, and
other European and international mechanisms. The majority of legal acts produced
within these systems and later to be implemented by its various member states or
signatory parties fall into the area of public, often administrative law. This fact even
generated, especially in the early days of European integration, the still widely
represented belief that EU law is just administrative law relating to regulating trade
and it is the private law which represents the safe harbour for national legislative
choices and national autonomy.58 It is thus interesting to see that in the context of
constitutional studies, in the committee drafting the Constitution—see Pospíšil and Wagnerová
(n 44) 283, 292.
56 See also most recently J Bell, ‘The Argumentative Status of Foreign Legal Arguments’ (2012) 8
Utrecht LR 8, 9, stating that ‘there is nothing sacrosanct about the distinction between public and
private law’ and that ‘theory of legal methodology has to offer an account of the use of comparative law
which is coherent across a legal system as a whole’.
57 See generally: Z Kühn, ‘Comparative Law in Central and Eastern Europe’ in M Reimann and
R Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP) 227–34.

58 For a succinct (and amusing) expression of such traditional views, see eg the open letter of some
forty French professors of law to the (then) President of the French Republic, Mr Jacques Chirac,
claiming that the transformation of the 1980 Rome Convention applicable to contracts into an EU
regulation (in similar fashion as was done before with the Brussels Convention, which became
Brussels I Regulation) lacks legitimacy. The letter provoked a reply by some eighty other French
professors. See the blog entry at <http://bruxelles.blogs.liberation.fr> of 14 January 2007 entitled ‘Ne
dites pas à ma mère que je suis militant souverainiste, elle me croît professeur de droit’.
EU law, the opposite arguments for the national specificity of public and private
law are being advanced, with private law being the nation-specific and public law
being Euro-harmonized.
The empirical findings in the second part of this book confirm that the public/
private law divide does not play any role as a distinct factor in the judicial use of
comparative arguments. In none of the systems studied was the fact of whether or
not the question to be solved pertained to private or public law recognized or
discussed as relevant for the use of comparative arguments by the court. Quantita-
tively speaking, the greatest amount of referencing and comparisons appears to be
carried out at the level of constitutional adjudication, especially in countries with a
separate and concentrated constitutional review.59 When looking at the respective
supreme (not constitutional) courts, then greater use of comparative law in public
(administrative) law than in the areas of private law is the case in the Czech
Republic and perhaps also in France. The Slovak Supreme Court is equally
indifferent to any visible display of comparative arguments in both public as well
as private law areas. Conversely, the Appellate Committee of the House of Lords
(United Kingdom Supreme Court) appears to be equally open to both. On the
other hand, in Germany, the greatest openness to comparative arguments at the
level under the Federal Constitutional Court is displayed by the Federal Supreme
Court in civil matters.
In sum, the decisive factors for the judicial use of comparative arguments across
the jurisdictions studied can be said to be those of institutional and/or procedural
design pertinent to the individual institution. Conversely, the fact of whether a
dispute relates to private or public law does not per se play any recognizable
difference in the likelihood of the use of comparative law in courts. A case apart,
however, which will be addressed in the following section, represent constitutional
courts.
7. Constitutional Adjudication and Human Rights

Constitutional adjudication, especially as far as human rights are concerned, forms
a distinct, transversal category which cannot be entirely placed either within the
public or the private law area. In earlier theoretical works, constitutional law and
human rights were construed as a specific area of public law, designed to set the
rules for the functioning of key public institutions and the protection of the
individual vis-à-vis the actions of these institutions.60 However, with the gradual
expansion of constitutional rules and human rights into all other areas of law
after the Second World War, the picture gradually changed. The key doctrines
of radiation effect (Ausstrahlungswirking) or horizontal effect (Drittwirkung) of
59 Germany, Czech Republic, Slovakia; the situation in France cannot be ascertained due to the
very different composition and the style of work of the Conseil constitutionel.
60 A classical statement of Continental (Germanic) visions is provided eg by: G Jellinek, System der
subjektiven öffentlichen Rechte (2nd edn, Mohr Siebeck 1919).

Constitutional Adjudication and Human Rights 61
constitutional rights, originally elaborated by the German Bundesverfassungsgericht

and by now accepted by most of its European constitutional offspring, bring
constitutional considerations also into private relationships.61
Constitutional law and human rights form therefore a transversal category that
radiates through the entire legal order. Its characteristics are not area dependent,62
but discernible more on the basis of the style of debates relating to it. Two elements
stand out with respect to the use of comparative arguments in this category: explicit
or implicit universalistic claims and the political nature of the debate.
The universalistic visions present in constitutional adjudication and especially the
human rights discourse generate a strong normative argument for comparative
inspiration being drawn particularly in this area. The end of the Second World
War witnessed a strong revival of universalistic thoughts and theories, especially in
the area of human rights. In the more liberal strands dominant in legal and political
theory since the War, the constitutional construction has been based on a rejection
of the nation state. It is characterized by a shared concern for the protection of basic
rights and fundamental freedoms and the primacy of the individual over the state,
principles which transcend a nation state, ancestry, or ethnicity. Human rights have
universal meaning.63 Their respect is the presumption, not a consequence of
constitutional validity and legitimacy.64
Such a new constitutional settlement has an impact on the role of the courts as
well as on their use of comparisons. The courts are called to protect human rights
and human dignity, if necessary even (or in particular) against the majoritarian will
of the people. This conception does not prioritize public consensus in the inter-
pretation of the laws, be it derived from the legal text itself or more traditional social
values, but rather their critical reading. The post-War conception of the new
constitutionalism demands more from democracy than just the respect of the
societal majority. It recognizes the judiciary as a separate and independent actor
of its own, with its own agenda, powers, and responsibilities.65
Within such political settings, there obviously is ample space for comparative
considerations by courts. They may even be said to have become a necessary compon-
ent of the new system. Domestic systems become just particular demonstrations
61 See especially: R Alexy, Theorie der Grundrechte (Nomos 1985) 243–8 (for the critique of
Jellinek) and 473ff (on the ubiquity of human rights in the entire legal system). See also: A Sajó and
R Uitz (eds), The Constitution in Private Relations: Expanding Constitutionalism (Eleven 2005).
62 Additionally, as with the public/private law divide and its definition in various systems, different
systems may also differently define what a constitutional issue is within the given system. For an
interesting argument on the comparability in cases in which one system classifies an issue as consti-
tutional and the other does not, see J Lindholm, ‘The Viability of Constitutional/Non-constitutional
Comparison’ in AB Engelbrekt and J Nergelius (eds), New Directions in Comparative Law (Edward
Elgar 2009).
63 See generally: L Kühnhardt, Die Universalität der Menschenrechte (Olzog 1987) 279ff; J Donelly,
Universal Human Rights in Theory and Practice (2nd edn, Cornell University Press 2003) 18ff.
64 LE Weinrib, ‘Constitutional Conceptions and Constitutional Comparativism’ in VC Jackson
and M Tushnet (eds), Defining the Field of Comparative Constitutional Law (Praeger 2002) 15ff; see
also LE Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ in S Choudry (ed), The
Migration of Constitutional Ideas (CUP 2006) 84ff.
65 Weinrib, ‘Constitutional Conceptions and Constitutional Comparativism’ (n 64) 21.
of one (same?) universal system, which is not unique and particular to one nation state.
They represent just a local variety of the same values and principles. Moreover, if one
accepts the critical role courts are there to play in the post-War model, then judicial
function and judicial considerations are, to a great extent, cut loose from the domestic
consensus and the domestic forum. In the critical and liberal narrative, comparative
analysis becomes a welcomed source of inspiration and a necessary source of external
legitimacy for the critical visions and interpretation created by the court. The (consti-
tutional) courts, which are supposed to guard the national forum, find only limited
support within that forum itself. The obvious choice becomes supporting each other
instead.
As far as the second element is concerned, human rights and constitutional
adjudication are close to the world of politics. Political discourse differs from the
(more black-lettered) legal one with respect to the type of arguments, their length,
and their structure. This difference in the reasoning style is carried over into
comparative reasoning at the constitutional level. When contrasted with the style
of comparative reasoning employed by ordinary courts,66 constitutional compari-
sons are often more rhetorical and impressionist than greatly substantiated. It is in
the area of comparative arguments in constitutional adjudication that one most
frequently encounters unspecified references to ‘common Western legal traditions’
or ‘values shared by European civilization’, etc.
Taking into account the level of abstraction at which a constitutional or a human
rights dispute typically finds itself, comparative references in this area are often very
superficial. Constitutional texts are the most difficult ones to compare at the level of
mere texts. In a comparative assessment of, for instance, human rights issues, the
constitutional text itself says little. It is the context and the case law which defines
the content. An example in this respect could be drawn from the area of various
socio-economic rights, which may, at face value, read the same in perhaps every
second national bill of rights. However, depending on the detailed fabric of case
law, statutes, and derived legislation, a ‘right to adequate care’ for senior people
might mean, in one jurisdiction, a fully-fledged system of social benefits; in another
just a ‘not starving to death guarantee’; in a third absolutely nothing, as any
implementing statutory legislation is missing and the national constitutional
court decided not to intervene under such circumstances; and, in the fourth,
which does not have such a right in its charter of basic rights at all, there might
actually be a very provident state whose duties to provide for older people are
derived from the rights to human dignity and/or equality.
Both of these elements, ie ideological claims to universality and by nature
political style of debate carried out at a higher level of abstraction, make the area
of constitutional law and in particular human rights paradoxically both more open
to comparative exchange and, at the same time, more vulnerable to challenges and
arguments against comparisons.
66 As employed in particular by the supreme courts with specialized jurisdictions which exist in the
Continental legal systems—the comparative questions asked and discussed by such jurisdictions are
more specific and technical, operating at a very different (lower) level of abstraction.
Constitutional Adjudication and Human Rights 63
Universalistic claims structurally open the field of human rights to the outside
world. It is, however, unclear, which outside world is in fact meant: only the
(indeed common) international, or also the other (in fact diverging) particular
national? Does universalism allow for divergence from the common international
through horizontal comparisons? How far (if at all) is the universalistic logic
reconcilable with inevitable national divergence?67 The high level of abstraction
in political documents such as constitutional texts and bills of rights makes in
pragmatic terms judicial comparisons a welcomed source of inspiration for filling
the vague texts with some content. At the same time, however, the ensuing
comparative human rights impressionism, frequently remaining on the level of
political statements about ‘shared values’ and ‘European traditions’, may rightly be
subject to critique.
In the practice of the courts studied in this book, all the vices outlined above are
certainly represented. At the same time, however, the practice also confirms the
assumption that it is in the area of constitutional adjudication and human rights
that the greatest quantity of comparative arguments is present, at least with respect
to Germany, the Czech Republic, and Slovakia. The same, however, could be said
also with respect to other European countries not specifically studied here, such as
Poland, Hungary, and others.68
With regard to this conclusion, a further caveat should nonetheless be added.
The discussion so far has focused on an area of law, namely constitutional adjudi-
cation and human rights. The empirical studies carried out in the second part of
this work relate, however to an institution. All the systems studied, with the
exception of the UK, have specialized and concentrated constitutional justice. It
is thus difficult to genuinely distinguish whether the higher frequency of invoked
comparative inspiration in constitutional courts is indeed due to the special
characteristics of the field of law in question or is in fact due to the institutional
design. As will be discussed further on in detail with respect to the role of compara-
tive reasoning in Central European post-communist constitutional courts, the
institutional design of a specialized constitutional court enforcing the new consti-
tutional settlement in a transformation setting, ie a new institution in a hostile
environment, makes it institutionally eminently predisposed to look for argumen-
tative support through appeals to external authority.69 Therefore, the quantity of
comparative reasoning in these courts may also be caused by such institutional
design and not the consequence of a dispute being a dispute on constitutional law
or human rights. The institutional design should not be mistaken for a proof
relating to the characteristics of a field of law.
It would nonetheless appear, at least from the writings on the use of comparative
reasoning and foreign authority in the context of constitutional reasoning and
67 Is national variety in human rights desirable? See the recent debate as to human rights ‘universal
in abstraction but national in application’ between Lord Hoffmann, ‘The Universality of Human
Rights’ (2009) 125 LQR 416, 420 and Tom Bingham, Widening Horizons: The Influence of Compara-
tive Law and International Law on Domestic Law (CUP 2010) 82–3.
68 For a short discussion of Poland and Hungary, see ch 14, section 2.1.
69 See ch 14, section 2.4.
human rights, that the predisposition for comparative arguments in constitutional
adjudication may also be present in the jurisdictions with no specialized and
concentrated constitutional review.70 There are, however, no conclusive empirical
studies which have, for instance, qualitatively studied and compared the amount of
comparative references made by the same jurisdiction in the various areas of law,
thus confirming or rebutting the assumption that the greatest amount of compara-
tive reasoning is indeed carried out in the area of human rights adjudication.
70 See, amongst others: C McCrudden, ‘A Common Law of Human Rights? Transnational Judicial
Conversations on Constitutional Rights’ (2000) 20 OJLS 499; J Tsen-Ta Lee, ‘Interpreting Bills of
Rights: The Value of a Comparative Approach’ (2007) 5 I-CON 122; SI Smithey, ‘A Tool, Not a
Master: The Use of Foreign Case Law in Canada and South Africa’ (2001) 34 Comparative Political
Studies 1188. For similar arguments made in the Continental context, see eg: Le Quinio (n 24), in
particular 397ff; C Grewe, ‘La circulation des droits fondamentaux ou l’impact du pluralisme culturel
en Europe’ in Le dialogue des juges: Mélanges en l’honneur du président Bruno Genevois (Dalloz 2009);
MC Ponthoreau, ‘Le recours à «l’argument de droit comparé» par le juge constitutionnel: Quelques
problèmes théorique et techniques’ in F Mélin-Soucramanien (ed), L’interprétation constitutionnelle
(Dalloz 2005).
PART II
THE PRACTICE
4
Prologue: The Method and its Pitfalls
This chapter sets out the research design and questions for the ensuing five case
studies in part two of this book. It discusses what is being examined with respect to
all the systems studied and how it is being achieved. Furthermore, problems
encountered in doing empirical research into case law and judicial behaviour are
acknowledged and the degree of potential data distortion caused by them discussed.
1. What
The second part of this book focuses on the use of non-mandatory comparative
arguments by supreme courts in five jurisdictions: England and Wales, France,
Germany, the Czech Republic, and Slovakia. The order of the case studies reflects
the logic of the theoretical argument advanced in part three. The first three systems
are established legal systems. The need for and the use of extra-systemic inspiration
and arguments within these systems have been relatively stable. Conversely, the
Czech Republic and Slovakia are systems recently (or still?) undergoing large-scale
political and social transformation. Their need for external inspiration and argu-
mentative support has been accordingly considerably higher.
The focus is on the use of comparative arguments in supreme courts. There are
two kinds of reasons for limiting the scope of this study to the level of national
supreme jurisdictions. The first one is the obvious pragmatic need for a manageable
scope for a research project. This choice, however, is advised also on the theoretical
plane by considering the specific role of supreme jurisdictions. The underlying
assumption is that if any court within a domestic judicial system is likely to seek
extra-systemic inspiration in the form of comparison, it will most likely be the court
of last instance, the task of which is not just to safeguard the unity of the law, but
also to further develop it. It typically is the supreme jurisdictions which might also
have the (albeit limited) time, resources, and sometimes expertise to consider such
broader aspects of a case.1
In defining what a supreme court is, the internal definition provided by each of
the legal systems has been adopted. Contrary to the dictionary meaning of the word
‘supreme’, there are typically several supreme courts within a legal system. Their
number is determined by the varying number of matter-specific jurisdictions
1 Also ch 3, section 3.1.

68 Prologue: The Method and its Pitfalls
(administrative, fiscal, criminal, civil, etc) within a legal system. If the legal system
studied has a specialized and separate constitutional review carried out by a consti-
tutional court, this court is included as yet another supreme court. For these
reasons, the number of supreme courts in the individual countries studied varies:
just one in England and Wales, two in Slovakia, three in the Czech Republic and in
France, and six in Germany.
What is sought and analyzed are instances of non-mandatory uses of foreign law.
Foreign law does not mean just legislation. It encompasses any potential source of
information about a foreign legal system—legislation, case law, and/or legal schol-
arship (books and scholarly articles coming from outside of the domestic legal
system). Also general, unspecified references to a ‘foreign solution’, invoking for
instance the situation in country X, but not making any further substantiated
reference to legislation, case law, or scholarly works, were included. Finally, as
already explained above, the use of non-mandatory foreign materials functionally
overlaps with comparative reasoning (also called comparative inspiration). These
two notions can thus be used interchangeably.2
The study carried out in this book concerns patterns of reasoning and foreign
influence and its frequency. It is not a quest for the truth. Accordingly, no
judgments are passed on whether the court in the particular case was right in
referring itself to a foreign decision in question or whether it was completely off the
point. The pertinence of the reference and its genuine substantive contribution to
the solution adopted by the court are not examined.
Similarly, no distinction is made with respect to genuine argumentative value of
the reference to foreign inspiration. The reference may thus form a part of a real
comparative argument or it may be just purely ornamental. It may be contained in
whatever part of the court’s reasoning, with whatever argumentative weight given
thereto. The reasons for this latitude are in fact simple: first, it is in reality
frequently impossible, through the reading of a decision, to discern ex post what
argumentative value a quoted foreign material in fact had.3 Secondly, if one were to
limit the empirical research only to instances where it were visible from the
reasoning of the court that there was a genuine comparative argument being
made, the study would be very short indeed. The vast majority of instances of
judicial references to comparative materials would fall short of even the most basic
academic requirements for comparison.4
Equally, any reference is included, irrespective of whether it is, for instance, a
positive reference or a dismissive one. In similar vein, both are included: references
to laws (substantive or procedural) of other systems as well as the use or importation
of methods and approaches, obviously as far as acknowledged or recognizable in the
decision (eg the principle of proportionality, the principle of radiation of funda-
mental rights, etc). No distinction is further made with respect to what character
2 Ch 2, section 4.
3 Also due to the fact that even if the influence of a foreign inspiration was substantial, it will most
likely be downplayed in the written version of the decision. Further ch 11, section 4.
4 Further discussed below in ch 13, sections 2 and 3.
How 69
the foreign authority being referred to has in the reasoning of the court: whether the
reference to the foreign recognize the law(s) referred to in their normative quality,
or whether the reference to laws of a foreign system is merely used for demonstrat-
ing that in country X, the societal effects of the regulation are such and such.5 The
unifying condition still is, however, that it must be an instance of non-mandatory
reference to some foreign inspiration.
In sum, any references, however vague and underdeveloped, to foreign non-
mandatory sources were included in the quantitative studies. Thus, even allusions
to ‘foreign democratic legal systems’; ‘a number of foreign democratic countries’;
values shared by ‘the Member States of the EU and other developed countries of the
Western Europe’; or ‘the founding principles of the contemporary Euro-Atlantic
civilization’6 were eventually counted as further unspecified instances of invoking
some foreign inspiration, in spite of the fact that the displayed referencing culture
and the quality of ‘comparative argument’ leaves much to be desired.
2. How
Each case study is concerned with the same two questions: first, what are the
domestic normative parameters for the judicial use of comparative arguments. In
other words, how does the system, represented by the national scholarship (the
national doctrine7) and judicial pronouncements themselves, predict that its own
agents, ie judges, should behave with respect to non-mandatory foreign materials?
Secondly, what is the genuine judicial practice with respect to foreign law and
comparative arguments made on this basis? All the case studies thus follow,
inasmuch as possible, the same structure:
5 Cf, eg: the decision of the German Federal Constitutional Court in BVerfGE 7, 377 (415). The
case concerned the issue whether or not the German legislation restricting the free establishment of
pharmacists can be justified by the overriding societal interest of providing for continuous and equal
distribution of medications within the state territory. The Court referred to the experience of other ‘the
Federal Republic Germany civilization-wise comparable countries’, which allowed for the free estab-
lishment of pharmacists and it had for consequence no apparent dangers to the public health and
distribution of medications. In such cases, it is in fact not the laws of other countries in their normative
quality which are referred to (these are often not even quoted or identified), but rather the ensuing
social effects of such regulation. The argument used is one of (a rather speculative) comparative
consequence: adopting similar legislation may not have the feared adverse effects in this country, as no
such effects are recognizable elsewhere.
6 All examples quoted were taken from decisions of the Czech Constitutional Court: 1 April 2004,
II. ÚS 797/02; 13 January 2005, III. ÚS 323/04 (use of undercover police agent); 15 November 2002,
Pl. ÚS 36/02 (election deposits); 16 October 2001, Pl. ÚS 5/01 (milk quotas); and 15 March 2005,
I. ÚS 367/03 (Vondráčková), respectively.
7 Throughout this book, the term ‘doctrine’ is used to refer to a set of opinions prevailing within a
given legal system with respect to the basic methodological and ideological tenets of that system (how
judges are supposed to interpret the law, what are the basic canons of interpretation, what is the role of
the judge in the society, and so on). In most European legal systems, such doctrinal layer would be
represented by mainstream textbooks and scholarly writings, creating a national dogmatic construction
of positive law and method.
(i) What are the domestic methodological views on the use of comparative
arguments by judges, ie what does the doctrine predict that judges should
be doing with respect to such arguments?
(ii) What are the domestic judicial views and declarations on the same subject,
be it in judicial or extra-judicial fora? In other words, what do the judges
themselves state that they are doing with respect to comparative arguments?
(iii) What is the actual practice in the supreme jurisdictions in the respective
system?
(iv) The overall evaluation of the theory and practice of the given legal system,
accompanied if possible with an explanation of disparities between them.
The way in which the empirical elements of the study, ie the assessment of the
actual practice, were carried out differs with respect to the Czech Republic and
Slovakia on the one hand and Germany, France, and England and Wales on the
other. In the case of the Czech Republic and Slovakia, the study relies on primary
research carried out in the following way:
(i) Study of all the case law of the supreme jurisdictions in the respective
systems in the period 2001–2005 inclusive,8 ie for five years. This study
was carried out by reading all the decisions published in the official reports
of the respective courts and by further electronic searches in all the available
databases of decisions unpublished in the official reports.
(ii) Interviews and discussions with judges in the respective jurisdictions and
also with their support staff, ie judicial assistants and advisors in analytical/
research departments, provided such departments exist within the respect-
ive courts.
(iii) Study of all the identified scholarly writings dealing with any aspects of
comparative reasoning in these systems within the period specified and beyond.
With respect to Germany, France, and England and Wales, the research is chiefly
based on secondary sources, ie other authors’ writings about the style and frequency
of the use of comparative arguments in the respective national supreme jurisdic-
tions. Unlike in the Central European countries, the legal scholarship in these large
European jurisdictions has generated, over the years, a fair amount of works dealing
with comparative reasoning in courts. These materials allowed, to a varying degree
depending on the system, to account for the citation practice and comparative
inspiration in these systems over the years.
The information gained from such secondary sources with respect to these three
jurisdictions was, however, verified by limited primary research into the case law
from the respective jurisdictions. The reference period chosen for this purpose was
8 The only exception to researching in the same period in all the jurisdictions studies was the Czech
Supreme Administrative Court, for which the reference period was 2003–2007 inclusive. The reason
for this difference is the fact that the Court was not established until 1 January 2003. There is thus no
case law prior to this date.
How 71
the most recent year for which the respective court had already published all its
decisions, ie either year 2008 or 2009. The reading of all the decisions published in
the respective official collections of cases for that year was again supplemented by
electronic searches in various available national case law databases.
The carrying out of some, albeit limited, primary research with respect to these
three jurisdictions served a double purpose. First, it enabled verification of whether
the data provided in other studies looked plausible. Second, by always choosing the
most recent available published case law, the idea was to add a temporal verifica-
tion. The works of other authors working on the same issue in the respective
jurisdictions dealt with the same phenomenon in the past. It was thus the most
recent series of decisions from the respective jurisdictions which could confirm or
call into question their findings as to the most recent trends in the case law of the
jurisdictions studied.
On the whole therefore, a multi-method approach9 to the study of a social
phenomenon, the judicial use of comparative arguments, was designed. It gener-
ated a composite and contextualized picture. It is only the combination of various
layers of analysis—the actual practice in the case law, existing scholarly discussion,
judicial self-perception displayed in the judicial forum and beyond—with all of
them contextualized within the background of the given system and interpreted in
the light of one another that may eventually provide a more reliable picture of the
reality.
To give an example: the necessity of a multi-method approach and the need to
read in particular subjective judicial statements and perceptions in the light of
different data sets (eg the case law itself, scholarly analysis extant within the system)
became particularly apparent when conducting interviews with judges as to their
views on comparative reasoning by courts. In evaluating the information obtained
in such interviews, two problems became readily apparent: first, the selection of the
judges to be interviewed and, second, a considerable judicial introspection bias.
Problems start already at the level of identifying judges to interview: it was largely
only those judges who themselves tend to be in favour of ‘the foreign’ and ‘the
international’ that would typically consent to an interview on the subject. Those
who do not care or are even mentally hostile to anything foreign are not inclined to
share their views with a foreign researcher coming to talk to them about precisely
that subject. Moreover, as Continental supreme jurisdictions are larger institutions,
only several judges can in fact be interviewed, typically precisely those interested.
Both of these factors generate a rather non-representative sample.
Secondly, the interview data collected confirmed the existence of considerable
introspection bias on the part of the judges when being asked about their own
work.10 Context of the interview mattered to a great extent: being interviewed by a
9 Further see, eg: LB Nielsen, ‘The Need for Multi-Method Approaches in Empirical Legal
Research’ in P Cane and HM Kritzer (eds), The Oxford Handbook of Empirical Legal Research (OUP
2010).
10 Critically see, eg: L Epstein and G King, ‘The Rules of Inference’ (2002) 69 U Chicago LR 1, 93;
L Webley, ‘Qualitative Approaches to Empirical Legal Research’ in Cane and Kritzer (n 9) 937.
foreigner about the importance of foreign inspiration for their decision-making, the
answers almost naturally tended to be positive as far as the overall approach and
willingness to consult foreign sources were concerned. However, when going
further and inquiring about the actual instances of such use, the overall positive
attitude became much more difficult to substantiate by actual examples.
In sum, interviews with judges as a method can account for judicial self-
perception and self-presentation, but hardly provide a truthful account of genuine
judicial practice. Such interviews, as well as extra-judicial writings, had to be
critically examined against the existent case law, scholarly writings and discussion,
and the internal functioning of the system in question. Otherwise, the ensuing
picture might be just a selective judicial self-portrait.11
3. Potential Inaccuracies
The outlined method is naturally not free from problems. At least three problems
encountered when analyzing case law ought to be highlighted, which may have
deformed the data collected.
First of all, there is the obvious problem of a court using foreign inspiration but
not quoting it in its reasoning, which sets the limits for any type of empirical study
on judicial reasoning and decision-making. The reasons for the absence of an
express reference may be multiple. Such citation restraints may be imposed by
the national legal or judicial tradition, which discourages or even forbids the judge
to quote such type of materials. They might be self-imposed. Or perhaps, the
comparative argument was from the very beginning intended for internal use only,
ie as a tool of internal persuasion within the court, but never even intended to be
displayed in the reasoning of the court. If identified, similar restraints are discussed
in the case studies.12
Secondly, comparative inspiration may come in indirectly, through national
scholarship, which may contain some elements of comparative reasoning. Such
comparative inspiration might then be taken over in the reasoning of the court.
This can happen in two ways: first, the judge quotes the domestic scholarly work
and quotes also, typically approvingly, the original foreign inspiration contained
therein. Secondly, the judge merely quotes the scholarly work, stating that the
solution suggested by author X finds a favourable ear in the court, without,
however, including any reference as to from where the author X originally gained
the inspiration. In the latter case, the origin of the comparative inspiration gets lost.
Once any reference to the author’s original inspiration is omitted in the judicial
reasoning, it is impossible, within a quantitative study, to account for such indirect
11 Which may naturally be a valid research result, if one is aware of reaching it. See for instance the
comprehensive discussion of the problem in B Flanagan and S Ahern, ‘Judicial Decision-Making and
Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 ICLQ 1, 7–13.
12 Moreover, ch 12 offers a more nuanced discussion of the strategies in judicial citations, reflecting
on why judges might be inclined to gain inspiration from a foreign source but never quote it in their
decision.
Potential Inaccuracies 73
comparative exchange. The comparative argument becomes hidden behind the veil
of domestic scholarship.
Such instances of hidden comparative exchange are particularly important in
larger systems with robust legal scholarship. In a way, the richer the national
scholarly debate, the less need for the courts to go out and seek inspiration
themselves. The relationship and balance between scholarship and courts is there-
fore taken into account when interpreting the purely quantitative data within the
respective case studies.
Thirdly, if anywhere, a comparative inspiration can be typically tracked only
once, at the original point of entry into the domestic legal system. After that, the
idea, or now a legal norm or principle, becomes a part of the domestic legal system.
When being referred to in the future, the reference will be to the first entry
judgment or further subsequent domestic decisions confirming the existence of
the same principle. There will no longer be any reference to the original sources,
even in cases when the original principle happens to be, comparatively or not,
further elaborated upon. It has now become the established domestic case law.
A similar yet opposite phenomenon is represented by the practice of cluster
citation, which is typical for some of the Continental supreme jurisdictions. One of
the characteristics of Continental supreme jurisdictions is the (for a common
lawyer) striking quantity of cases they dispose of, often running to thousands of
cases every year. One of the tools for dealing with such a number of cases is
verbatim copy and pasting of previous reasons given by the same chamber or
another chamber within the same court into similar future decisions. This applies
also to the parts of the reasons where the court would have employed any compara-
tive arguments: such a part will be taken over and verbatim repeated in future cases.
Such repetition is, however, not a genuinely new argument, but rather a convenient
(and somewhat ecologically unfriendly) way of referring to own previous case law.
For this reason, repetitive cluster citations of foreign materials are, unless there is at
least a minimal change in the wording or the materials referred to, counted only
once, again at the original point of first entry into the case law of the court in
question.
All these discussed limits to an empirical study of case law may deform the true
picture of the role comparative inspiration plays in the reasoning of national
supreme courts. Nonetheless, even in spite of all these potential shortcomings, it
may be suggested that the ensuing analysis is still of interest.
First, where such information was available, instances of hidden or purely
internal discourse concerning comparative arguments are discussed as well. One
may, however, still suggest that an empirical study such as this one will be by
definition superficial and incomplete, because judges meet in person and discuss
and have informal contacts, networks, systems of sharing knowledge, etc. They
simply use avenues of exchange which can never be accounted for in an academic
study.
However, while closely observing, participating in, and sometimes even organiz-
ing various types of judicial cooperation, networks, and exchanges within Europe
for several years, the author failed to encounter such type of hidden discourse,
where judges seek to exchange information hidden from the eyes of the public.
Notwithstanding the fact that there naturally will be instances of more discreet
forms of personal judicial communication, the impact13 that such informal ex-
changes and encounters have on judicial decision-making is markedly exaggerated
by both (extreme) opinion sides which participate in the debate on the use of
comparative law by courts: by the side that would welcome such development as a
sign of the birth of a true global community of judges as well as by the other that
would warn against the danger of the establishment of an ‘international priesthood’
of judges which would seek to ‘impose upon our free and independent citizens
supra-national values that contradict their own’.14
Second, even though there may be occasional inaccuracies with one or a few
instances of comparative inspiration missing, it may be suggested that the ensuing
analysis is correct as far as the general trends are concerned. Notwithstanding that
the collected data may perhaps not always be entirely right in units, it is correct in
the overall order of magnitude, which is the point of greatest interest. It is not
important that there were in reality, for instance, three and not just two references
to foreign non-mandatory materials by a supreme jurisdiction in the course of a
judicial year. The important finding is that these were in the range of few isolated
units, not of tens or hundreds.
Finally and perhaps most importantly, this study is not a study in statistics or the
increasingly popular ‘quotation metrics’, the purpose of which were to generate a
set of colourful, but for a real understanding of a phenomenon often quite useless,
graphs or tables. It is a study in patterns of legal reasoning and legal style in a
comparative context. This means that the fact that a legal tradition is hiding
something, for instance express references to genuine foreign inspiration, and
that the standards of the justification of judicial decisions become intentionally or
unintentionally deformed, is in itself of great comparative interest and will be
discussed in the ensuing parts of this book.
13 Also ch 3, section 3.3.

14 A Scalia, ‘Commentary’ (1995–1996) 40 St Louis ULJ 1119, 1122.
5
England and Wales
There are several factors which make the English1 courts the ideal place for the use
of comparative reasoning by courts. First of all, judges openly make law. In many
areas of the law, judges openly act as rule-makers, thus looking for similar kinds of
extra-systemic inspiration as a norm-setting body. Secondly, there is an open and
inclusive theory of sources of law, which accepts persuasive authority in statutory
interpretation as well as persuasive precedents. The incorporation of extra-systemic
arguments thus poses no dogmatic problems. Thirdly, the style of judicial
reasoning is open and discursive. The judges do not hesitate to draw inspiration
from secondary sources and openly acknowledge such inspiration. Fourthly, the
colonial and international tradition of the past centuries has prevented the emer-
gence of the conception of law as an exclusively national enterprise. It has also been
forcing judges to deal with foreign legal systems, be it in adjudication of the
disputes coming from the Commonwealth or in quite numerous international
commercial disputes. Fifthly, the national supreme jurisdiction, until October
2009 the Appellate Committee of the House of Lords (UKHL), today the Supreme
Court of the United Kingdom (UKSC), deals only with a limited number of cases
every year. Within these, it can allow itself to go into the appropriate depth, with a
fair part of the work of researching the materials being passed on to the parties and
their legal representatives. Lastly, the language of the judicial system is currently the
dominant world language. If any information on foreign law is accessible in another
language than the language of that legal system, it would typically be in English.
And yet, with all these favourable institutional settings, the actual use of
comparative reasoning in the English courts is limited. To be precise: there is a
strong influx of the mandatory foreign, in particular of both systems of European
law (EU law and the European Convention), as well as fair portion of international
litigation. There is also a fair amount of exchange going on between the English
courts and some of the courts in the English speaking common law world. There is,
however, little or no non-mandatory exchange with the rest of the world, including
the European Continental countries.
1 This chapter is concerned only with the English courts, in particular with the Appellate Commit-
tee of the House of Lords and the newly established Supreme Court of the United Kingdom. Other
legal systems within the United Kingdom are outside its scope.
76 England and Wales
1. The Doctrine
The English rules on interpretation are twofold, depending on the source of law
which is to be interpreted: either a precedent, or a statute. Traditionally, consider-
able attention in the English doctrine has been paid to the interpretation of
precedents; very little to the interpretation of statutes. This reflects the relative
weight given internally by the system of law to each of these sources. Well into the
20th century, the common law was seen as a precedent-made law, on the territory
of which there was an occasional (and mostly unwelcome) intrusion of a statute.
Therefore, the first theoretical works concerning interpretation of the law were
concerned with the functioning of precedents.2 Only later, after the Second World
War, did works that were also concerned with the construction of statutes start to
appear.3
Interpretation and the use of these two distinct sources are still kept apart.
However, the difference between statutory interpretation and the common law
reasoning out of precedents reveals less difference than is often supposed.4 Both
types of interpretation work with similar types of arguments, especially as far as
second order justifications and consequentialist types of arguments are concerned.5
Moreover, both types of interpretation will be applied by the same courts, within
the same reasoning. Statutes and their interpretation will be squeezed into the grid
of the common law, although formally being given priority owing to the principle
of primacy of the legislative will of Parliament.
Finally, over the last decades, the internal balance between the quantity of
statutory laws (Acts of Parliament as well as derived legislation) and precedents
has also considerably shifted.6 With the current amount of domestic as well as
European legislative production, the English system is moving gradually towards a
system of ‘written law’,7 with statutory interpretation gaining more and more
importance. Nonetheless, following the traditional self-perception of the legal
2 See, eg: AL Goodhart, Precedent in English and Continental Law (Stevens 1934) and the references
to further literature contained therein.

3 See the personal account on this issue by Sir Rupert Cross in the preface to the first edition of his
‘Statutory Interpretation’, reprinted in J Bell and G Engle, Cross Statutory Interpretation (3rd edn,
Butterworths 1995) vii. This evolution is opposite to that on the European Continent, where the first
methodological works published after the great codifications in the late-18th and the beginning of the
19th century were concerned exclusively with the interpretation of codes and statutes, completely
omitting (or even intentionally leaving outside) case law and work with case law. It was only after the
Second World War that the renaissance and recognition of the role of case law started and the first
scholarly works concerning it appeared in the Continental systems.
4 Z Bankowski and N MacCormick, ‘Statutory Interpretation in the United Kingdom’ in
N MacCormick and RS Summers (eds), Interpreting Statutes: A Comparative Study (Dartmouth

1991) 387. See also Bell and Engle (n 3) 43ff.
5 N MacCormick, Legal Reasoning and Legal Theory (Clarendon 1978) 100ff.
6 See, eg: T Bingham, The Rule of Law (Penguin 2010) 37–47.
7 Lord Woolf remarked, with respect to the current rules on the English civil procedure, that ‘Our
civil procedure is now much closer to the French. As I like to describe it, it is situated somewhere in the
middle of the English Channel, au milieu de la manche’. Lord Woolf (edited by Christopher Camp-
bell-Holt), The Pursuit of Justice (OUP 2008) 401.
The Doctrine 77
system, the input that comparative analysis can provide for interpretation of each of
the sources will be examined in turn, starting with the ‘default’ precedent and then
looking at the statutory ‘intruder’.
1.1. Precedent
For the purpose of this study, the following characteristics of the English notion of
precedent should be highlighted:8 a precedent is generally speaking any prior
decision of any court that can provide inspiration and possible analogy to a new
case before a court. If the previous decision was issued by a superior court within
the same judicial system, ie by an English superior court, the precedent will be, by
virtue of the doctrine of stare decises, binding upon any lower court. However, all
other decisions, which might be relevant for the case at hand, may function as a
persuasive precedent. They may have justifying force, they may provide further
support, or they may have illustrative or other value.
Within the category of persuasiveness, the scale is a sliding one, depending on
the case in question, its context, and its factual setting. Highly persuasive would
typically be the judicial decisions from other common law jurisdictions, especially
their highest courts. However, within the same category of persuasive precedent
(albeit not with the same weight) also fall the decisions of any other courts in other
jurisdictions, which might provide some inspiration or analogy in the case at hand,
including decisions of Continental or other jurisdictions. All the precedents coming
from other jurisdictions than England and Wales can thus, at least potentially, have
persuasive authority. Its particular strength will be evaluated by the judge hearing
the case, but no foreign decision is per se excluded.
There are various factors which influence the persuasive strength of a precedent.9
It is, however, clear that the English system of sources defines itself as an open
system: it is ready to allow for and integrate into itself sources of external (non-
national) provenance. Such a perception with respect to precedents is also con-
firmed by the ‘Practice Direction on the Citation of Authorities’.10 Rule 9, entitled
‘Authorities decided in other jurisdictions’, provides that:
9.1 Cases decided in other jurisdictions can, if properly used, be a valuable
source of law in this jurisdiction. At the same time, however, such authority
should not be cited without proper consideration of whether it does indeed
add to the existing body of law.
9.2 In future therefore, any advocate who seeks to cite an authority from
another jurisdiction must
i. comply, in respect of that authority, with the rules set out in paragraph 8
above;
8 See in particular R Cross and JW Harris, Precedent in English Law (4th edn, Clarendon 1991)
chs I, III, and V. See also: Neil Duxbury, The Nature and Authority of Precedent (CUP 2008) 1–22.
9 Further see the discussion in the works cited in nn 4 and 8.
10 Practice Direction on the Citation of Authorities [2001] 1 WLR 1001; [2001] 2 All ER 510.
ii. indicate in respect of each authority what that authority adds that is not
to be found in authority in this jurisdiction; or, if there is said to be
justification for adding to domestic authority, what that justification is;
iii. certify that there is no authority in this jurisdiction that precludes the
acceptance by the court of the proposition that the foreign authority is
said to establish.
9.3 For the avoidance of doubt, paragraphs 9.1 and 9.2 do not apply to cases
decided in either the European Court of Justice or the organs of the
European Convention of Human Rights. Because of the status in English
law of such authority, as provided by, respectively, section 3 of the Euro-
pean Communities Act 1972 and section 2(1) of the Human Rights Act
1998, such cases are covered by the earlier paragraphs of this Direction.
The Practice Direction helpfully sets out the role foreign precedents are supposed to
have within the system. Their function is auxiliary only. They are to be invoked
only if they can add anything useful to the existing body of English law. The last
section highlights the different status enjoyed by the decisions of either of the
European courts (Luxembourg as well as Strasbourg), which belong in the ‘must’ and
not a mere ‘may’ category. They are thus treated essentially as domestic precedents.
1.2. Statutory Interpretation

Similar openness of the English system is also visible with respect to materials which
can be used by an English judge for the interpretation of a statute. There is again no
strict dichotomy of binding/non-binding sources of law, but rather a scale of
various methods and materials, which can be used for the purpose of interpretation
of statutes, ranging from mandatory materials to persuasive and just admissible.
Bankowski and MacCormick distinguished three types of such materials: man-
datory, persuasive or admissible, and inadmissible.11 The first category, which
includes materials like the text of the Act itself and binding precedents, are the
mandatory (or ‘must’) materials. The omission of these sources renders the act of
interpretation legally inept and wrong, not just unpersuasive. The procedural
consequence would be that the decision will be quashed on appeal. The persuasive
and admissible materials contain the ‘should’ or ‘may’ sources. The usage of such
materials by the court is at its own discretion. The reference and proper usage of such
materials augments the persuasive value of the argument, but it is not absolutely
necessary. Such materials include scholarly works, systematic arguments on the basis
of other enactments or other areas of the legal system, but also foreign precedents and
foreign materials. Lastly, inadmissible materials were, for a long time, limited to very
few instances, the most prominent of them being legislative history and legislative
intent. However, following Pepper v Hart,12 even their status changed.
11 Bankowski and MacCormick (n 4) 374–82.

12 [1993] 1 All ER 42. See generally: Bell and Engle (n 3) 155ff. Recently (and comparatively) also
H Fleischer, ‘Comparative Approaches to the Use of Legislative History in Statutory Interpretation’
(2012) 60 AJCL 401, 416ff.
The Doctrine 79
The classification of the materials which may be used in statutory interpretation

may again, similarly to the interpretation of precedents, vary: one may talk of
binding as opposed to permissible13 or mandatory as opposed to optional author-
ity.14 The important point for this study, however, remains undisputed: English
rules on statutory interpretation are open and permissive. They allow for a smooth
inclusion of comparative legal arguments, by creating a scale of authority. Foreign
legal materials or judicial decisions can be accepted as persuasive authority in the
process of legal interpretation.15
1.3. An Axiomatically Open System

The above described open and inclusive notion of legal sources and authority differs
considerably from the axiomatically closed Continental systems, for which the only
traditionally recognized authority in modern times has been of national legislative
origin. The historical reasons for this difference can be easily discerned. The ability
to define the scope of sources of law is an exercise in real political power and
centralization, which occurred in the Continental countries either gradually in the
period of enlightened absolutism or rather suddenly with the revolutionary shift
towards unreserved popular sovereignty in France. The national rules on sources of
law and their interpretation are thus a crystallization of the balance between the
legislature and the judiciary. Continental judiciaries from 18th century onwards
have been politically tied, more in the French case and somewhat less within the
Germanic legal culture, but still tied to the will of the national legislature. No
similar developments happened in England. The judiciary thus never became
bound as to its power and, accordingly, also not as to the allowed sources of law
and inspiration.
The limits on (persuasive) authority and citation in English courts are therefore
of functional, not political origin. An open system, such as the English one, might
gradually become overburdened, at least seemingly,16 with the amount of available
materials, internal as well as external. Anything might be cited—too much becomes
cited, if the technology permits. The problem is in no way new.17 Over the last two
decades or so, it has just been made worst by electronic reporting of cases and
online access to virtually all decisions rendered within the legal system, in other
common law jurisdictions and elsewhere in the world.18
13 HLA Hart, The Concept of Law (2nd edn, Clarendon 1994) 294. See also: J Gardner, ‘Concern-
ing Permissive Sources and Gaps’ (1988) 8 OJLS 457.

14 F Schauer, ‘Authority and Authorities’ (2008) 94 Virginia LR 1931, 1946.
15 See also: JA Jolowicz, ‘Les professions juridiques et le droit comparé: Angleterre’ (1994) 46
RIDC 747, 752–3.

17 R v Erskine [2010] 1 WLR 183 (CA) [65]–[77], where Lord Judge CJ traces judicial complaints
concerning ‘too much not at all pertinent authority cited by counsels’ back as far as 1863. See also
Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 (Ch) (Laddie J).
18 See, eg: R Munday, ‘Over-Citation: Stemming the Tide’ (2002) 166 JPN 6 (part one); (2002)
JPN 29 (part two); (2002) 166 JPN 83 (part three). Comparatively within the common law world, see:
SW Brenner, Precedent Inflation (Transaction Publishers 1992).
It is interesting to note, however, that even against such background of ‘authority
inflation’, or rather citation inflation, the restrictions introduced within the English
common law are imposed even-handedly on all potentially persuasive precedents:
lower domestic as well as all foreign. This means that anything can still be cited,
provided it adds something to the existing body of law, establishes a new principle
not yet present in the domestic legal system.19 In spite of citation inflation, the
system remains politically open. It just requires relevance in citing of authorities of
whatever origin.20
2. Judicial Views
English judges are not shy in making their views known, be it in the judicial or in the
extra-judicial forum. The use of comparative arguments by courts is no exception. The
opinions voiced in either of the fora vary, depending on the personal views of the judge.
The mainstream opinion could nonetheless be said to be one of ‘reserved optimism’
vis-à-vis the foreign: yes, helpful and most illuminating, but . . . There is, however,
further differentiation with respect to the common law and the non-common law
world. With reference to comparative arguments coming from outside of the English
speaking common law world, judicial pronouncements become more cautious.
2.1. The Judicial Forum

Already in 1978, Lord Denning foreshadowed, in the particular case perhaps rather
unintentionally, the direction of debates on comparative inspiration which would
define English law decades later. Addressing the question whether or not an English
court may issue an injunction restraining a person not in the jurisdiction of the
court but having assets within it, Lord Denning referred to older English authority
and scholarly writing in support of the power to issue such injunction. Relying on a
19th-century English treatise, he furthermore added:
[T]he same process was available in most maritime towns on the continent of Europe.
There it has survived most vigorously and is in force everywhere today. It is called in
France ‘saisie conservatoire’. It is applied universally on the continent. ( . . . ) Now that we
have joined the common market, it would be appropriate that we should follow suit.21
Whether the fact of joining the Common Market in 1973 was indeed supposed to
amount to the political redefinition of the set of preferred comparisons, as Lord
Denning suggested, has been an issue hotly debated until today, which is discussed
further in this chapter. The more recent judicial description of the role of the
international and comparative inspiration in the development of the English law,
19 Cf rules 6.1, 7.1, and 9.1 of the Practice Direction on the Citation of Authorities (n 10).
20 As opposed to a political system closure, in which it is only the foreign which cannot be cited. For
further discussion see ch 14, section 3.1.
21 Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara [1978] QB 644,
658.
Judicial Views 81
which can be said to provide the mainstream judicial narrative,22 was provided by
Lord Bingham in Fairchild v Glenhaven Funeral Services.23 In this case, after having
reviewed a great range of comparative material, Lord Bingham noted that:
[D]evelopment of the law in this country cannot of course depend on a head-count of
decisions and codes adopted in other countries around the world, often against a
background of different rules and traditions. The law must be developed coherently, in
accordance with principle, so as to serve, even-handedly, the ends of justice. If,
however, a decision is given in this country which offends one’s basic sense of justice,
and if consideration of international sources suggests that a different and more
acceptable decision would be given in most other jurisdictions, whatever their legal
tradition, this must prompt anxious review of the decision in question. In a shrinking
world ( . . . ) there must be some virtue in uniformity of outcome whatever the diversity
of approach in reaching that outcome.24
In Woolwich Building Society v Inland Revenue Commissioners,25 Lord Goff opined,
with reference to the discussed German law, that the German solution of making
the right of recovery subject to strict time limits imposed as a matter of policy was
‘instructive’, as was also in White and another v Jones.26 In a decision of the Court of
Appeal, Hirst LJ stated, with respect to a Dutch and a Belgian case submitted to the
court, that ‘I find [the Dutch decision discussed in the case] very strongly persuasive
( . . . ) even though it is not of course binding upon us or conclusive’.27
Other recent judicial pronouncements28 of the utility of comparative reasoning
in courts tend to go along similar lines: politely highlighted utility and usefulness.
Occasionally, voices of rejection can also be found, not necessarily directed against
comparative inspiration per se, but rather as far as its usefulness or pertinence in the
individual case are concerned.29
A more cautious tone was struck, however, for instance by Lord Hoffmann.
Writing in his judicial capacity as well as extra-judicially on ‘anti-terrorism’ related
issues and human rights, he did not hesitate to point out that ‘learning from
Europe’ might have some (historical) limits30 and that it is not necessary to
submerge English moral values and the culturally-determined sense of fairness
under a ‘pan-European jurisprudence of human rights’.31 It should be noted,
22 Considering the undisputable intellectual influence of Lord Thomas Bingham, Baron Bingham
of Cornhill, who has successively held the posts of Master of the Rolls, Lord Chief Justice, and Senior
Law Lord. See, eg: B Dickson, ‘A Hard Act to Follow: The Bingham Court, 2000–8’ in Louis Blom-
Cooper and others (eds), The Judicial House of Lords 1876–2009 (OUP 2009) 255.
23 [2002] UKHL 22.
24 [2002] UKHL 22 [32].
25 [1992] 3 All ER 737 (HL).
26 [1995] 1 All ER 691 (HL).
27 [1995] 3 All ER 424 (CA), 428.
28 Cf, eg: Transco plc v Stockport Metropolitan Borough Council [2003] UKHL 61, [7] (Lord
Bingham of Cornhill); Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518 (HL),
[4] (Lord Goff).
29 Cf, eg: McShannon v Rockware Glas, Ltd [1978] AC 795 (HL), 811 (Lord Diplock).
30 Cf especially Lord Hoffmann’s speech in A and others v Secretary of State for the Home Department
[2004] UKHL 56, [88].

31 Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, 165.
however, that the latter opinion especially was related to the Strasbourg system in
the context of how far would it be possible, for a European court for human rights,
to genuinely develop a Euro-wide common notion of human rights and how far
these are determined by the particular values of national communities.32
2.2. Extra-judicial Fora

Also in extra-judicial writings, it might be suggested that the overall approach to and
perception of the issue of the use of comparative inspiration in English courts over the
last decade or two has been defined by Lord Bingham. Already in 1991, he inquired
into the causes of the increased internationalism in English law.33 He suggested that
the UK joining the European Communities and the ensuing rise in contact with the
Continent might have been one of the causes, together with the growing importance
of international conventions and the international commercial practice. However, he
also stressed that ‘[i]n showing a new receptiveness to the experience and learning of
others, the English courts are not, I think, establishing a new tradition but reverting
to an old and preferable one’.34 He then went on and listed numerous examples from
the 18th century onwards in which there was a clear and strong comparative influ-
ence and legal exchange between England and the European Continent.
A more detailed version of Bingham’s arguments on the influence of inter-
national and comparative law on the English legal system was offered in his 2009
Hamlyn Lecture.35 Yet again, Lord Bingham noted that the law of England and
Wales is and always has been far from ‘an island, entire of itself ’, or ‘a pure-bred,
home-grown product of our national genius’. Instead, ‘it is a mongrel, gaining in
vigour and intelligence what it has lost in purity of pedigree’.36 Furthermore, while
acknowledging that as far as comparative inspiration is concerned, its use in English
courts is quite limited37 (in contrast to international law and European law of
human rights), he suggested that
[T]he purpose of recourse to comparative jurisprudence is not to conduct an inter-
national opinion poll. Its value and use may differ from case to case. ( . . . ) it is hard to
suppose that the opinions of their Lordships were not strengthened and refined by the
opportunity which they had enjoyed of studying the reasoning of other courts
confronting the same problem as they had to resolve, whether in the event they agreed
with that reasoning or not.38
Another open stance was taken by Lord Goff of Chieveley. In his view, ‘the
problem which faces us is, I believe, not whether we should strive to learn from
32 See also Lord Hoffmann, ‘The Universality of Human Rights’ (2009) 125 LQR 416, 422.
33 TH Bingham, ‘ “There is a World Elsewhere”: The Changing Perspectives of English Law’
(1992) 41 ICLQ 513.
34 Bingham (n 33) 527.
35 Published as T Bingham, Widening Horizons: The Influence of Comparative Law and International
Law on Domestic Law (CUP 2010).

36 Bingham (n 35) 5.
37 Bingham (n 35) 7 and 29.
38 Bingham (n 35) 23.
Judicial Views 83
others, but how we should set about it’.39 He did, however, also stress the
difficulties in identifying relevant foreign materials for the parties and the judge
and recount his personal experience from the White v Jones 40 decision in the
UKHL, where the reliance on foreign inspiration was significant. As he also
revealed, however, the use of German materials in that particular case was, in a
way, quite extraordinary and unique in its setting.41
A distinct type of judicial pronouncements on the utility of comparative
reasoning in the domestic forum might be represented by various speeches given
especially by more senior members of the English judiciary at a range of inter-
national judicial meetings. Within such a context and such an audience, a type of
‘compulsory internationalist optimism’ is to be expected.42 More sceptical views
offered at such a forum are somewhat less expected and thus rather refreshing. An
example is provided by Lord Justice Sedley who in the answer to the question ‘is
comparative constitutional law of any value’ to a national judge stated that:
My answer is one that you may think no participant at this congress should give:
comparative constitutional law is of infinite interest but of little or no practical value in
constitutional adjudication ( . . . ) My sympathies are with the British academic who
has described the practice—not the theory—of comparative law as judicial tourism.
Tourism is enjoyable and informative, but the artifacts which you bring back cannot be
more than decorative. The real value of what you learn is to enhance your appreciation
of your own culture. Like other British judges I refer to comparative sources in some of
my judgments, a number of them on constitutional issues. But no judge I know
anywhere in the world has ever decided a case differently because of persuasive
decisions in other jurisdictions. Comparative sources will either amplify the decision
which the judge has already decided is the correct one or, at worst, will be sidelined as
unhelpful. This is not the isolationism of a Scalia. It is the cosmopolitanism of a
Kennedy, a Breyer, a Ginsburg—tempered by judicial realism.43
On the whole, however, the judicial as well as extra-judicial pronouncements of the
senior English judiciary on the use and the utility of comparative law for the
decision-making of an English judge are rather positive. The occasional moderate
sceptical voices are concerned with ‘how can we do it’ in terms of (linguistic)
competence, time, costs, and resources, pointing out the difficulty an English judge
faces when trying to understand the particularities of a foreign system of law. There
are, however, no rejections, certainly not outright, of comparative inspiration qua
persuasive authority in courts.
39 Lord Goff of Chieveley, ‘Comparative Law: the Challenge to the Judges’ in B Markesinis (ed),
Law Making, Law Finding and Law Shaping: The Diverse Influences. The Clifford Chance Lectures:
Volume Two (OUP 1997) 37. On a similar note, see also Lord Justice Mance, ‘Foreign and Compara-
tive Law in the Courts’ (2001) 36 Texas ILJ 415, 418–20.
40 [1995] 2 AC 207 (HL).
41 Lord Goff of Chieveley (n 39) 39.
42 For one example amongst many, cf, eg: the lecture entitled ‘The International Role of the
Judiciary’ given by Lord Woolf, at that time the Lord Chief Justice of England and Wales, at the 13th
Commonwealth Law Conference in Melbourne, Australia on 16 April 2003 and reprinted in Lord
Woolf (edited by Christopher Campbell-Holt) The Pursuit of Justice (OUP 2008) 395–404.
43 S Sedley, ‘Constitutional Court Judge’ ‘Roundtable—Comparative Constitutionalism in Prac-
tice’ (2005) 3 I-CON 569, 569–70.

Such interpretation of judicial views can also be collaborated by judicial self-
perception on matters of the use of foreign and comparative law. Two recent
studies44 captured through interviews with senior English and other judges the
judicial views relating to the use of foreign law. They both concur in the stating that
English as well as other judges are aware of the international dimensions of their
work. English judges perceive themselves as generally open to inspiration from
elsewhere, albeit typically with a number of practical and pragmatic caveats at-
tached. The studies differ, however, in interpreting the motives for such (relative)
judicial openness to foreign inspiration. The first study authored by Elaine Mak is
more ‘institutionally optimistic’. Although she acknowledges that the voluntary
recourse to comparative law is quantitatively very limited and does not follow any
specific logic, she reaches a rather sweeping conclusion that foreign law plays an
increasingly important role in the judicial making in the English highest courts.45
On the other hand, the authors of the second study, Brian Flanagan and Sinéad
Ahern, are considerably more critical in interpreting judicial self-portraits with
respect to foreign law inspiration. Accounting for a considerable degree of intro-
spection bias on the part of the judges interviewed, the authors suggest that true
judicial comparativists might in fact be in minority amongst the English and other
common law countries judges. They suggest that ‘[c]itation opportunism and the
aspiration to the membership of an emerging international judicial “guild” appear
to be equally important strands in attitudes towards the use of foreign law’.46
3. The Practice
The style of English judicial decisions is open and discursive. In contrast to the
judicial reasoning styles in a number of Continental jurisdictions, an English
judgment is not hiding anything. Quite to the contrary, English judges generally
do not hesitate to openly acknowledge their inner considerations and policy
arguments, including those involving comparative inspiration. Such openness in
style allows quite a faithful reconstruction of the sources of inspiration for a judicial
decision.
3.1. The Common Law and the Rest of the World Gap
Such a reconstructive enterprise was carried out in 1996 by Esin Örücü for the
purposes of the XIVth International Congress of Comparative Law, which dealt
44 B Flanagan and S Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of
Common Law Supreme Court Judges’ (2011) 60 ICLQ 1 and E Mak, ‘Why Do Dutch and UK
Judges Cite Foreign Law?’ (2011) 70 CLJ 420. The arguments of the latter article are further developed
in E Mak, ‘Reference to Foreign Law in the Supreme Court of Britain and the Netherlands: Explaining
the Development of Judicial Practices’ (2012) 8 Utrecht LR 20.
45 E Mak, ‘Why Do Dutch and UK Judges Cite Foreign Law?’ (n 44) 423, 429, 442, and 449.
46 Flanagan and Ahern (n 44) 24 and 26.
The Practice 85
with the use of comparative law by courts.47 Her statistical study comprised all the
English cases reported in the All ER. The periods chosen were the years 1972,
1982, 1992, and then the period between 1990 and 1995. The reason for including
previous years in the study was to examine whether the entry of the UK to the
European Community in 1972 made any difference to the pattern of references and
the use of comparative authority.
In her research, however, Örücü was looking for any citation of any foreign law
before the English courts, irrespective of whether or not the case involved a conflict
of laws scenario, international treaties or conventions, or just entirely voluntary
references to foreign materials as a source of inspiration in purely domestic
situations. The resulting data thus included a much larger set than studied here,
ie not only non-mandatory but also mandatory uses of foreign law.
In spite of this fact, however, the agglomerated data48 are quite revealing. Örücü
suggested that the UK accession to the EC (now EU) did not change the citation
patterns in the English courts to any significant extent. There were naturally cases
in which the English courts referred to the decisions of the Court of Justice of the
EU. The most judicial cross-referencing was still, however, between the members
of the common law family. The greatest number of references were made to
Australian courts, then to the United States, New Zealand, Canada, and also
Scotland. In spite of the fact that joining the Common Market offered to the
English courts a solid justification for referring to laws of the other Member States
of the EU, this was not happening in practice to any significant extent. Örücü
concluded that legal systems outside of the above mentioned common law coun-
tries are mentioned very sporadically and are not being used for the further
development of English common law. She suggested that comparisons between
English law and other common law jurisdictions are ‘functional’ use of comparative
law, whereas in the few cases when civilian systems were considered, their use
would be just ‘ornamental’.49
A quantitative study by MM Siems50 focused on the citation practice of the
Court of Appeal between 1984 and 2006. It came to similar conclusions to those
offered by Örücü. Similarly to Örücü, Siems did not distinguish between the
quality of the ‘foreign’ invoked, thus putting mandatory as well as non-mandatory
uses into one category of references to foreign judicial decisions. He suggested that
on average, the Court of Appeal cited foreign common law courts in 16 per cent of
cases, whereas references to non-common law systems remained under 0.551 per
cent. In concrete terms, 0.5 per cent citation to non-common law countries meant
47 E Örücü, ‘Comparative Law in British Courts’ in U Drobnig and S Van Erp (eds), The Use of
Comparative Law by Courts (Kluwer 1999).

48 Örücü (n 47) 263–5.
49 Örücü (n 47) 282 and 293–4.
50 MM Siems, ‘Citation Patterns of the German Federal Supreme Court and the Court of Appeal of
England and Wales’ (2010) 21 KLJ 152.

51 Siems (n 50) figure 4 and text to fn 49 and 50. The indicated value of the standard deviation for
both of these figures is, however, very high, thus making the figures very volatile across the years and
not much reliable.
on average less than one case a year. The common law countries to which the Court
of Appeal referred most frequently included Australia, Canada, and New Zealand.
The United States took the fourth place, followed by Ireland and South Africa.52
Qualitative rather than quantitative studies of the use of comparative reasoning
in the English courts are captured in the numerous writings by Basil Markesinis.53
His arguments tend to be, however, normative rather than descriptive. In his
writings, Markesinis called for a greater use of comparative reasoning before the
English courts by using the sources and inspiration from other European jurisdic-
tions. As far as quantitative analysis is concerned, he mentioned six cases, spread
over a decade (1987–1997), in which English judges, in the area of private law, also
used European inspiration in arriving at their conclusions. The German and French
authorities in these cases were used alongside the traditional common law ones as
reinforcing a decision reached on the basis of common law materials.54
A recent area-specific quantitative study of the referencing patterns of British and
French courts in matters of asylum law carried out by Hélène Lambert is also
revealing. Lambert reviewed the decisions of all the British and French courts
competent to hear cases in asylum matters.55 The area of asylum law is a prominent
area of international cooperation and gradual harmonization. The first inter-
national instruments in this area started to appear already after the Second World
War.56 Recent years have evidenced considerable legislative activity in this area
within the EU, which have essentially led to harmonization of the national laws in
this area. Asylum cases and decisions rendered by other jurisdictions within the
same convention or EU system would thus surely fall at least within the advisable
uses of comparative reasoning, as all the courts interpret the same original docu-
ment(s) and participate in the same system. Moreover, as Lambert also pointed out,
in the area of asylum law, there is no shortage of international networks of judges,
joint databases, and information that is accessible online world-wide.57
At the same time, however, looking at all the British cases from all the competent
jurisdictions rendered until January 2008, Lambert concludes that ‘the empirical
findings reveal a surprising lack of transnational use of national jurisprudence
on asylum between judges’.58 British courts often referred to asylum case law
from other common law countries (Canada, New Zealand, Australia, and the
United States of America). They also increasingly relied upon the jurisprudence
52 Siems (n 50) figure 5 and text to fn 58. See also M Gelter and M Siems, ‘Networks, Dialogue or
One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts’
(2012) 8 Utrecht LR 88, 93.
53 See above all ‘Foreign Law and Foreign Ideas in the English Courts’ in B Markesinis, Always on
the Same Path: Essays on Foreign Law and Comparative Methodology. Volume II (Hart 2001); ‘Five Days
in the House of Lords: Some Comparative Reflections on White v Jones’ in B Markesinis, Foreign Law
and Comparative Methodology: A Subject and a Thesis (Hart 1997); and B Markesinis and J Fedtke,
Judicial Recourse to Foreign Law: A New Source of Inspiration? (UCL Press 2006).
54 Markesinis, ‘Foreign Law and Foreign Ideas in the English Courts’ (n 53) 53.
55 H Lambert, ‘Transnational Judicial Dialogue, Harmonisation and the Common European
Asylum System’ (2009) 58 ICLQ 519.

56 Most notably the 1951 United Nations Convention Relating to Refugees (189 UNTS 150).
57 Lambert (n 55) 523–4.
58 Lambert (n 55) 522.
The Practice 87
of international courts of tribunals (the Court of Justice, ECtHR, and also the
International Court of Justice and the International Tribunal for Former Yugo-
slavia). However, there were only seven instances (three of them in the UKHL)
where the British judges made at least a passing reference to the jurisprudence from
other EU Member States.59 Additionally, in those cases when such a reference
occurred, it was actually in the context of the application of the EU Dublin II
Regulation,60 which requires the national court to consider the likely conduct of a
court in a third country in relation to the asylum seeker in question. These cases
thus in fact represent compulsory references to the foreign system by the national
judge, quite similar to extradition issues in criminal cases.
The results of the study carried out by Lambert are particularly striking: even
when interpreting European laws of a unified European asylum system, English
judges would rather look for inspiration to the Commonwealth countries than to
other Continental jurisdictions, which are however, in contrast to the Common-
wealth, sharing and applying the same European laws. The logic of the shared legal
enterprise of the Common Market, and the ensuing interpretative maxim of
realigning oneself with other countries within the same system, boldly announced
by the already quoted Lord Denning in 1978,61 does not appear to be much
followed in the English judicial practice.
3.2. A Glance at the Appellate Committee of the House

of Lords in 2009
The same trends identified in the quantitative studies carried out in the past and
discussed in the previous section are confirmed by reading through all the decisions
of the UKHL in the final year of its existence, in 2009. In this year, the UKHL
dealt with forty-four cases on merits.62 The substance of these cases varied consider-
ably: from immigration and the ‘fight against terror’ issues, secret surveillance,
freedom of information, to contract formation, trusts, and criminal issues including
the prosecution for assisted suicide and many others. The UKHL, as well as the
UKSC today, are truly ‘generalist’ courts, dealing with all questions of public and
private law. In almost half of the cases decided in 2009 (44 per cent), at least one of
their Lordships referred in their speeches to persuasive authority for reaching their
decision, ie some of the ‘should/may’ sources described earlier. Such an authority
tended to be of academic origin, ie a textbook, leading treatise, or a scholarly article.
The relative frequency of citing scholarly works confirms that the convention
59 Lambert (n 55) 529.

60 Council Regulation 343/2003 of 18 February 2003 establishing the criteria and mechanisms for
determining the Member State responsible for examining an asylum application lodged in one of the
Member States by a third-country national [2003] OJ L 50/1.
61 See n 21.
62 Out of 104 petitions for leave to appeal dealt with by the UKHL in 2009, 59 were refused, 43
allowed, 1 allowed on terms, and 1 withdrawn—Judicial and Court Statistics 2009 (Ministry of Justice
2010) 162.
regarding the hesitation to quote scholarly writings, be it by dead and/or living
authors, is long time passed.63
In 24 per cent of cases, ie in about one case in four, legal materials from outside
of the UK were referred to. The ‘may’ materials referred to in these cases were
almost exclusively of common law provenience: their Lordships referred six times
to cases (either federal or state) and/or scholarly writings from Canada and also six
times to cases (either federal or state) and/or scholarly writings from the United
States. Australian materials (cases as well as scholarly writings) were referred
to three times. New Zealand, South Africa, and Ireland all ‘scored’ with one
reference.
Their Lordships also cited a great variety of other sources, including various
policy documents, background (governmental) white or green papers, Law Com-
mission reports, but also Shakespeare’s Othello64 and the Ten Commandments.65
There was nonetheless just one single reference to legal materials outside of the
common law world: a citation of French law and the Unidroit Principles of
International Commercial Contracts and the Principles of European Contract
Law (PECL) in Chartbrook Limited v Persimmon Homes Limited and others.66
The case concerned the question whether or not their Lordships should depart
from a principle of English common law governing the interpretation of contracts,
which states that pre-contractual exchange between the parties to a later contract
cannot be used as an aid to the interpretation of that contract. Lord Hoffmann,
reasoning for the majority, referred to various common law sources and decisions.
With respect to the French legal materials, he stated:
Supporters of the admissibility of pre-contractual negotiations draw attention to the
fact that Continental legal systems seem to have little difficulty in taking them into
account. Both the Unidroit Principles of International Commercial Contracts (1994
and 2004 revision) and the Principles of European Contract Law (1999) provide that
in ascertaining the ‘common intention of the parties’, regard shall be had to prior
negotiations ( . . . ) But these instruments reflect the French philosophy of contractual
interpretation, which is altogether different from that of English law. As Professor
Catherine Valcke explains in an illuminating article (‘On Comparing French and
English Contract Law: Insights from Social Contract Theory’) (16 January 2009),
French law regards ( . . . ) English law, on the other hand ( . . . ) One cannot in my
opinion simply transpose rules based on one philosophy of contractual interpretation
to another, or assume that the practical effect of admitting such evidence under the
English system of civil procedure will be the same as that under a Continental
system.67
63 See generally: A Braun, ‘Burying the Living? The Citation of Legal Writings in English Courts’
(2010) 58 AJCL 27 or N Duxbury, Jurists and Judges: An Essay on Influence (Hart 2001) 62–77.
64 Attorney-General’s Reference No 3 of 1999: Application by the British Broadcasting Corporation to set
aside or Vary a Reporting Restriction Order [2009] UKHL 11, [7] (Lord Hope of Craighead quoting a
previous statement by Lord Hoffmann).
65 Mucelli and others v Government of Albania and others [2009] UKHL 2, [22] (Lord Rodger of
Earlsferry).
66 [2009] UKHL 38.
67 [2009] UKHL 38 [39] (Lord Hoffmann).
The Practice 89
The quoted passage is self-explanatory. This single instance in which a reference to

a foreign inspiration outside the common law world was made in the UKHL in
2009 was in a dismissive remark, stating that Unidroit and PECL principles should
not be followed as they are rooted in a legal philosophy foreign to English law.
A glance at the practice of the UKHL in the last year of its existence thus
confirmed the rather reserved approach their Lordships had to inspiration coming
from outside of the common law world. This may be, at first sight, rather surpris-
ing: if any court in Europe should be able to engage in comparative reasoning, it
ought to be the UKHL. First, it had the benefit of selecting the cases it would hear,
thus having the time and resources to focus on a select legal issue in great detail.
Looking at the statistics of the judicial activity of the UKHL in the past years, the
UKHL typically decided on 200–250 petitions for leave to appeal68 and up to 100
direct appeals from the Court of Appeal (civil and criminal combined). Within a
yearly session, their Lordships would decide just about 100 cases on merits.69 One
can hardly compare this to the sheer volume of cases a supreme Continental
jurisdiction annually disposes of, running to thousand or even tens of thousands of
cases. Second, the actual identification and submission of the comparative materials is
‘outsourced’ to the parties and their legal representatives.70 Third, as was already
explained, the system is open to all sorts of permissible and persuasive materials.
However, it would be quite incorrect to accuse their Lordships of parochialism or
self-centred sufficiency, quite to the contrary: the amount of comparative reasoning
within the common law jurisdictions is quite extraordinary. Additionally, there is
also abundant ‘European’ material: the breath and the depth of the use of the case
law of the ECtHR and, in EU law related matters also the Court of Justice,71 is
striking. The effects of the Human Rights Act 1998 and the full incorporation
of the European Convention and the case law of the Strasbourg Court into the
reasoning of the English courts is plainly visible: in statistical terms again, in 2009,
the UKHL referred to the case law of the ECtHR in about one half of the total cases
brought before the House. Their Lordships discussed the case law of the ECtHR in
quite some depth; sometimes perhaps not entirely enthusiastically,72 but always
with considerable detail. This has no parallel in any of the other European supreme
68 Petitions for leave to appeal (ie applications for permission to appeal) were heard and decided by
an Appeal Committee of three Lords of Appeal in Ordinary. Only if the leave was granted (or if it was
not required) would the case be heard on merits by the Appellate Committee.
69 Ministry of Justice, Judicial and Court Statistics 2008 (The Stationery Office 2009) 19–20;
Ministry of Justice, Judicial and Court Statistics 2007 (The Stationery Office 2008) 19–20.
70 See generally: Markesinis, ‘Five Days in the House of Lords’ (n 53) 333.
71 Francis Jacobs and David Anderson noted that whereas in the 1980s, there would be one
significant EU law case decided by the House of Lords per year, in the 2000s, there would be about
five such cases a year: F Jacobs and D Anderson, ‘European Influences’ in L Blom-Cooper and others
(eds), The Judicial House of Lords 1876–2009 (OUP 2009) 486–7.
72 Cf, eg: Secretary of State for the Home Department v AF and another [2009] UKHL 28, [98],
where Lord Rodger somewhat gloomily announced that ‘Even though we are dealing with rights under
a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum—
Strasbourg has spoken, the case is closed’. Similarly Jacobs and Anderson (n 71 at 499) with respect to
their Lordships’ treatment of EU law, noting that it would be applied ‘not always with obvious
enthusiasm but with courtesy and generally without fuss’.
jurisdictions analyzed further in this study. It could be thus maintained that the
law and the experience of other European countries is coming before the UKHL
indirectly, channelled through the European Convention or the law of the EU, or
perhaps even through other pan-European legal systems.73 However, the engage-
ment with ‘Europe’ in these cases is not a matter of judicial choice, but the
consequence of domestic constitutional obligation.
3.3. The Supreme Court of the United Kingdom

As from 1 October 2009, the UKHL ceased to be the supreme jurisdiction for the
United Kingdom. The new supreme jurisdiction is the Supreme Court of the
United Kingdom.74 The UKSC is, however, likely to carry on judicial business in a
manner quite similar to the UKHL. The persons and to a great extent also the
procedures remain the same.75
The continuity suggestion appears to be true so far of the UKSC’s approach to
comparative inspiration. In the judicial year 2010–2011, a similar pattern to that
described above with respect to the closing year of the UKHL is visible: consider-
able engagement with both systems of European law and just a handful of cases of
cases including non-mandatory comparative inspiration. Within this handful, the
comparative inspiration came from other common law jurisdictions. No compara-
tive discussion of national European legal systems appears to have taken place.76
4. An Evaluation: A Real Change or Just a Change in Taxonomy?

4.1. The Unity of the Common Law—from Appeals to Coordination
The above described practice of the English courts and especially of the UKHL
demonstrates that, if any legal comparisons are carried out, they involve typically
just other countries within the former British colonies, including the USA. Such a
choice of comparators is understandable in terms of the purpose of comparisons: to
obtain inspiration for the judicial further development of English law. If one is to
73 Cf, eg: Generics (UK) Limited and others v H Lundbeck A/S [2009] UKHL 12, where their
Lordships discussed the need to conform interpretation of the English Patents Act 1977 with the
provisions of the European Patent Convention and the decisions of the Board of Appeals of the
European Patent Office.
74 Part 3 of the Constitutional Reform Act 2005. Further see, eg: A Le Sueur (ed), Building the UK’s
New Supreme Court: National and Comparative Perspectives (OUP 2004).

75 Reflecting on the first three years of the UKSC, its first president, Lord Phillips of Worth
Matravers, noted that very little has changed since and that establishing the UKSC would be ‘change of
form rather than substance, but form in this instance was of vital importance’: ‘The Birth and First
Steps of the UK Supreme Court’ (2012) 1 CJICL 9, 9–10. See also: J Lennan, ‘A Supreme Court for
the United Kingdom: a note on early days’ (2010) 29 CJQ 139. But see B Hale, ‘Judgment Writing in
the Supreme Court’, Speech at the First Anniversary Seminar of the UKSC on 30 September 2010,
online at <http://www.supremecourt.gov.uk> (noting greater tendency to collegiality and collabor-
ation in drafting judgments in the new UKSC than previously in the UKHL).
76 J Bell, ‘Comparative Law in the Supreme Court 2010–11’ (2012) 1 CJICL 20.
An Evaluation: A Real Change or Just a Change in Taxonomy? 91
look for comparative inspiration, the prime place to look would always be within
the ‘neighbourhood’, where linguistic, historical, and cultural proximity offer easily
accessible inspiration with a good chance of transferability of the foreign solutions.
British colonial history and the occasionally still declared ‘unity of the common
law’ may even invite the question whether references to the law of selected few
common law nations, especially the British dominions like Australia, Canada, or
New Zealand, are references to foreign law at all. British colonial rule established an
intriguing network of legal regimes, some directly and others indirectly connected
to English common law. For a considerable historical period, the colonies and
dominions have been a part of the British legal system as such. There was the
possibility of direct appeals from the colonial courts to the Privy Council. In this
period, going well into 1980s, one could perhaps conceive of this complex judicial
system as a sort of federation. The common law of the colonies or dominions, while
still being judicially and politically linked to the UK, was not considered to be
foreign law at all.
Gradually, direct appeals from most of the Commonwealth countries to the Privy
Council have been abolished.77 However, even after the direct judicial links with the
former colonies have been cut, the system might still be perceived as a unity.
Numerous judicial and scholarly pronouncements, especially within the Judicial
Committee of the Privy Council, but also in the former UKHL and other courts,78
stated that there should be ‘one’ common law and any deviation within the common
law should be avoided. In a similar vein, English judges consider the use of the
decisions from other common law jurisdictions to be ‘useful’,79 to give them
reassurance, illumination, inspiration, or comfort.80 The current judicial vision of
unity of the common law is, however, rather a broader notion of a privileged
relationship,81 not a requirement of homogeneity in all areas of the law.
After the judicial separation of the dominions and colonies from the British
Crown, the content of the principle of unity of common law has changed as well. It
has mutated from an imposed colonial unity, which was, in its nature, vertical, to a
more horizontal or diagonal type of relationship, which is voluntary. The consider-
ation of the other systems is thus no longer necessary in legal terms; comparisons
within the British Commonwealth are an example of advisable comparisons due to
77 Appeals from Australia to the Privy Council were abolished first in federal matters (1968), then
from the High Court (1975), and finally from state supreme courts (1986). Previously, appeals to the
Privy Council were discontinued from Canada (1949) and, most recently, also from New Zealand
(2003). See generally: M Kirby, ‘The Lords, Tom Bingham, and Australia’ in M Andenas and
D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (OUP
2009) or J Chen, ‘The Use of Comparative Law by Courts: Australian Courts at the Crossroads’ in
U Drobnig and S Van Erp (eds), The Use of Comparative Law by Courts (Kluwer 1999).
78 The views of both bodies on most issues were similar, also because of the personal union between
these institutions: a number of Lords of Appeals in Ordinary would sit not just in the UKHL, but also
in the Judicial Committee of the Privy Council, thus securing not only personal but also jurisdictional
union between the two institutions.
79 R v Kingston [1994] All ER 606 (HL), 627 (Lord Mustill).
80 Further examples in Örücü (n 47) 274.
81 See, eg: KJ Keith, ‘The Unity of the Common Law and the Ending of Appeals to the Privy
Council’ (2005) 54 ICLQ 197, 209.

the common past and the migration of the entire legal system. The principle of
judicial comity amongst the common law countries can thus now be seen as
demarcation of a space of culturally, historically, and in the end also politically,
preferred comparisons.
The greatest change has occurred within the English courts themselves. The
jurisdictions in the former colonies are no longer regarded as are supposed to listen
to us, but more like partners, to whom we may listen as well. This point, stated by
the former justice at the Australian High Court, Michael Kirby,82 can be also
substantiated in statistical terms. In early-20th century, there were no citations of
Australian decisions in the English courts. This gradually changed in the second
half of the 20th century and the practice of citing Australian decisions has
multiplied from the 1970s onwards,83 basically since appeals from the Australian
courts to the Privy Council started being abolished.
In this perspective, the approach of the English legal system towards its colonial
offspring has changed considerably over the last three decades or so. Since severing
the judicial links with London, the amount of citation of Australian, New Zealand,
and Canadian decisions in the English courts has been growing. Between the
former centre and the colonies as well as between the colonies themselves, one
could talk of genuine ‘dialogue-like’ exchanges. There is a constant interaction and
cross-referencing to judicial decisions as well as within the legal scholarship, not just
sporadic one-way accidental borrowings. In sum, subjects became partners.
There are, however, two additional points which may somewhat qualify this
notion of Commonwealth unity and the internal referencing practice. First, it
appears that this comity, if perhaps not in theory, but in practice, is limited to
the ‘white’ or the ‘old’ Commonwealth, ie to the UK and Canada, Australia, New
Zealand, and occasionally also to Ireland or South Africa. Other English-speaking
countries, some of them even of considerable size and importance, such as for
instance India, tend not to be included.84 Second, there is the somewhat odd
position of the USA. Although the USA tends to be mentioned as a common law
country and referred to quite often, the example of the USA (federal or any of the
states) typically serves as an example of what is not the English common law.85 The
law of the USA (federal as well as state law) is perceived as more and more deviating
from the English common law.86
82 Kirby (n 77) 714. Similarly also KM Hayne, ‘The High Court of Australia and the Supreme
Court of the United Kingdom: The Continued Evolution of Legal Relationships’ (2012) 1 CJICL 13.
83 Kirby (n 77) 714, n 7.
84 J Stapleton, ‘Benefits of Comparative Tort Reasoning’ in Andenas and Fairgrieve (n 77) 784.
85 Cf, eg: Moore Stephens v Stone Rolls Limited [2009] UKHL 39 [272] (Lord Mance): ‘American
cases appear to have taken a different view on this particular point under Texan and Pennsylvanian
state law ( . . . ) They come from a different legal background, I do not consider that they represent
English law.’ Cf also: Halifax Building Society v Thomas [1995] All ER 673 (AC); Nederlandse
Reassurantie Groep Holding NV v Bacon and Woodrow [1995] 1 All ER 976 (QB); R v Governor of
Pentonville Prison, ex parte Naghdi [1990] 1 All ER 256 (QB).
86 Historically seen, American law has been discussed in the English courts ever since the beginning
of the 20th century and perhaps even earlier. See generally: A Kiralfy, ‘The Persuasive Authority of
American Rulings in England’ (1948–1949) 23 Tulane LR 209.
The unity of the common law can thus be perceived as a political dictum
concerning the circle of preferred advisable comparisons within a selected group
of English-speaking countries, which share a part of their legal history and, to some,
albeit diminishing extent, also cultural and societal context.
4.2. With Whom to Compare?

With whom one compares is not just an exercise of objective need and potential,
but also a deeply political question. Provided that the comparison is not dismissive,
the choice of a comparator gives a sense of commonality and acceptance: ‘This is an
exemplar to which I am ready to compare myself.’
For historical reasons, the English courts feel such commonality with selected
English-speaking common law jurisdictions. After the UK joined the European
Communities, some people might have hoped (and others feared) that the UK
would now join Continental Europe. This should be evidenced by a change in the
(comparative) attention of the English courts: less comparative consideration would
be given to the common law world and more considerations to Continental
Europe.
The empirical findings discussed above, however, clearly demonstrate that this is
not the case. Any direct comparative inspiration drawn from the Continent and
used in the English courts remains very limited. If any new inventions from the
Continental systems are coming over, this happens through one of the systems of
European law, in judicial terms either through the case law of the Strasbourg or the
Luxembourg court.87 On the other hand, this type of indirect European exchange
is significant, in quantitative terms clearly outnumbering the direct comparative
engagement with the other common law countries. As already mentioned, however,
this type of argumentative use of the European systems is mandatory for the
English courts by the virtue of the 1998 Human Rights Act and 1972 European
Communities Act.
It might perhaps be suggested that a direct exchange with other (national)
European legal systems is not necessary once European influences come in abun-
dance through both systems of European law. An English court gets to know
national ‘European solutions’ indirectly, through the Strasbourg or the Luxem-
bourg court. This might be true to a certain extent: in terms of substantive law, but
in particular in terms of working methods and approaches, both European courts
are today in fact ‘civilian’ courts, in which the Continental influence is determina-
tive.88 At the same time, however, non-mandatory comparisons are typically
present in areas where there is no European law. A national European solution
can thus hardly be taken from EU law or ECHR law in these cases.
87 A well-known example is the migration of the proportionality principle into the English law. See,
eg: G de Búrca, ‘Proportionality and Wednesbury Unreasonableness: The Influence of European Legal
Concepts on UK Law’ (1997) EPL 561.
88 Further see M Bobek, ‘Of Feasibility and Silent Elephants: The Legitimacy of the Court of
Justice through the Eyes of National Courts’ in M Adams and others (eds), Judging Europe’s Judges: The
Legitimacy of the Case Law of the European Court of Justice Examined (Hart 2013).
The same argument has nonetheless greater strength if taken from the micro-
level (solution of a particular case) to the macro-level (the overall foreign influence
on the development of the English law). On the macro-level, it might be seen as
advisable to dilute the overwhelming European influence with inspiration taken
from outside of the system itself. Such argument, much more sophisticated at this
stage, however still neglects the fact that what comes through one of the European
systems is never a monolithic ‘European-Continental’ solution. There still is
considerable diversity in national practice and implementation of the European
models at the European national levels. One piece of EU legislation might have
quite different content and application in practice in say Germany as opposed to
Portugal, Finland, or Slovakia.
The fact of minimal direct exchange between the English and the Continental
European courts seems to have caused uneasiness on the part of some prominent
scholars, most notably Sir Basil Markesinis. In his numerous writings,89 Markesinis
pleads for a greater use of comparative reasoning in the English courts, especially
with respect to the Continental legal systems.
Notwithstanding the fact that one might have personal sympathies for the cause
advocated by Markesinis, some aspects of his writings are somewhat problematic.
First of all, the chief virtue in an academic study is its critical mental detachment
and independence. A difference should be maintained between descriptive (empir-
ical) and prescriptive (normative) statements, at least in works where the author
claims to be making some empirical statements. These two levels seem, however,
somewhat blurred in Markesinis’ writing on the use of comparative law by the
English courts. The argumentative use of few private law cases, in which the author
was professionally involved, becomes evidence of the ‘beginning of a trend’,
demonstrating a ‘change in judicial mentality’, etc.90 These factual statements
are, however, not supported by any data. Therein lies the second problem: these
statements tend to coincide with the normative and political agenda of the author,
thus eroding any remaining belief in the objectivity of his study.91 Thirdly,
the belief in the ‘cause’ then spills over into the tone and style of the writing,
which is somewhat apodictic, redemptive, and recently becoming more and more
personal.92
89 See n 53; see also contributions in the edited volume The Gradual Convergence: Foreign Ideas,
Foreign Influences, and English Law on the Eve of the 21st Century (Clarendon 1994). See also
Comparative Law in the Courtroom and Classroom: The Story of the Last Thirty-five Years (Hart
2003). The latter book has been revised and republished as B Markesinis and J Fedtke, Engaging
with Foreign Law (Hart 2009).
90 Markesinis, ‘Foreign Law and Foreign Ideas in the English Court’ (n 53) 54.
91 In his introduction to Foreign Law and Comparative Methodology: A Subject and a Thesis (Hart
1997) 6 and 7, Markesinis stated that he has an ‘ideological belief in Europe’ and he sought to become
more active in ‘his cause’ (‘And whose minds should I attempt to win over to my cause.’), which made
him to turn to the English judges, as the ‘senior partners of the law-making process’ in England.
92 See especially: B Markesinis, ‘Goethe, Bingham, and the Gift of an Open Mind: Weltliteratur
and Global Lessons from Goethe’ in Andenas and Fairgrieve (n 77), which is a reaction to an article by
Jane Stapleton in the same volume entitled ‘Benefits of Comparative Tort Reasoning: Lost in
Translation’. In Markesinis’ article, substantive arguments are replaced by arguments ad personam
and somewhat questionable appeals to authority, such as (at 746): ‘Professor Stapleton is not just
4.3. The Voluntary Commonwealth and the Compulsory Europe

In spite of ‘joining Europe’, the reference patterns in the English courts as far as
non-mandatory references to foreign law are concerned remained largely the same.
The preferred area for any direct judicial comparative exchange is the old ‘white’
British Commonwealth. Outside of this area, comparative reasoning is scarce,
although it occurs from time to time.
At the same time, however, there is a considerable influx of ‘Europe’ through
both mandatory systems of European law, the EU and the Council of Europe
(ECHR), especially in the last ten years following the full impact of the European
Convention and the case law of the ECtHR before the UK courts. As was
demonstrated above, in cases before the UKHL in 2009, Strasbourg court case
law was discussed in almost one half of the total cases decided.
This creates an intriguing contrast: since the 1970s, English judges have been
politically (ie by Parliament) directed towards Europe. At the same time, however,
in the cases in which English judges have a choice left as to the authority they wish to
rely upon, ie in situations of non-mandatory considerations of foreign law, their
attention remains fixed on the English-speaking common law countries outside of
Europe.
This division reflects, in a way, the overall picture of today’s UK, which
continues to be torn between its overseas attachments on the one hand and Europe
on the other. As happens with people who are standing with their feet in two places,
they might get approval as well as reproach from both sides. From some of the
writers, such as Markesinis, reproach would come for not being ‘pro-Europe’
enough. From others, including senior judges from the Commonwealth countries,
disapproval would be voiced for being too ‘pro-Europe’ and thus no longer really
English and with a system of law which could hardly be called ‘common-law’ any
longer.93
In spite of the fact that the patterns of inspiration and internal reference within
the common law world have not changed greatly, what has changed is the
perspective on these exchanges. Before stopping the appeals from countries like
Canada, Australia, or New Zealand, the exchange within the British Common-
wealth was one-sided: London spoke, dominions or colonies listened. With the last
internal judicial links within the English common law world cut, the vertical
relationship became a horizontal one and the traffic ceased to be one-sided.
Thus, although the substance has not changed much, its external appearance has
done.
condemning my writings; she is condemning the practice of the South African Constitutional Court,
the Israeli Supreme Court, the Canadian Constitutional Court [sic!]’.
93 See, eg: R Cooke, ‘The Road Ahead for the Common Law’ (2004) 53 ICLQ 273. The Rt Hon
Lord Cooke of Thorndon was the president of the New Zealand Court of Appeal, who subsequently
sat in the UKHL. In his article, he suggested (at 273 and 274) that the UK was going further and
further in ‘submitting to European influences’ and that ‘the common law of England is becoming
gradually less English’.
This shift in taxonomy might perhaps also account for the overall feeling in some
of the writings on the phenomenon of ‘judicial dialogues’ in the English-speaking
world that the judicial use of comparative law is rising. A substantial part of such
analysis would come from authors who are focusing on the exchange between
selected common law jurisdictions only. What may be perceived as something new
is in fact just the evolution of a system which has turned, as far as the relationships
between London and the Commonwealth are concerned, over the last decades from
a vertical to a horizontal one. It is no longer one-sided. It has also become multi-
polar and diversified, with not only centre-periphery exchanges but also between
the various peripheries. At the same time, however, a substantial level of exchange
within the common law world continues to go on. The only thing that has changed
is that the same practice has now moved from the ‘mandatory’ box to the one
marked ‘advisable’.
6
France
Looking at the ‘products’ of the highest French courts, ie decisions of the Cour de
cassation (CdC), the Conseil d’Etat (CdE), and the Conseil constitutionnel (CC), the
idea that one might acquire is that there are no comparative considerations in the
practice of French highest courts. Traditionally, French law, be it the Code civil or
le droit administratif, was there to be exported, ‘rayonner’ into other countries. This
perception together with the fact that there are no express references to foreign law
in the decisions of the highest French courts could lead to the conclusion that
French ‘ethnocentricity’1 does not allow for any inspiration to be drawn from other
legal systems.
Such a conclusion would be entirely wrong. A comparative exchange has been
and is going on, albeit perhaps to a limited extent. For the reasons peculiar to the
legal and judicial tradition, such an exchange does, however, take on particular
form. First, it is not openly displayed. Comparative reasoning in courts is used as a
tool of internal debate, not as an instrument for external justification. Secondly,
because of the historical constitutional balance within the legal system, comparative
law has traditionally been seen as a matter for the legislator and legal scholarship,
not for the courts.
1. A Note on the Judicial Style

The French judicial style, especially at the highest level, is an example (or the
example) of a legal tradition which hides more than it explicitly tells. Mitchel Lasser
called this situation ‘radical bifurcation’ of the French (civil) judicial system.2 On
the one hand, there is the external official portrait of the legalistic French judge who
just applies existing law in a simple syllogistic form, apparently devoid of any
policy-oriented, contextual, or other arguments going beyond the simple letter of
the law. On the other hand, there is the other discursive world, which is hidden
from the eyes of the public: the internal argumentative sphere. Within this sphere,
French magistrates openly consider arguments of equity, justice, changing social
1Term used by O Moréteau, ‘Ne tirez pas sur le comparatiste’ (2005) 7 Recueil Dalloz 452, [2].
2M Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy
(OUP 2004) 60.
98 France
reality, etc. This bifurcated model of legal discourse then spills over into issues of
legitimacy and transparency of the exercise of the judicial function.3
The reasons for the conciseness of the ‘syllogisme juridique’, as for many other
elements in French law, can be traced back to revolutionary France in the late-18th
century. The Revolution broke the power of regional parlements and thereby the
power of local administrators-judges. The law of 17–24 August 1790 provided for
the duty to state reasons in a brief and concise form, with reference made only to
statutes passed by the sovereign people and without any other consideration. This
duty was perceived as revolutionary victory over the judicial structures of the ancien
régime and their (mostly) oral and arbitrary justice.4 It also evidenced the complete
and unreserved submission of the judge to the will of the people, ie the legislature.5
Two chief purposes were thus served by the Revolution-imposed duty to state
written reasons. On the one hand, there was the prevention of local arbitrariness
through the centralization of judicial power. Written reasons were essential for the
establishment of a centralized review. Only written reasons can be later reviewed,
typically at a different time, in a different place, and by persons who did not take
part in the first instance trial. On the other hand, however, judicial power, central
as well as local, was also to be submitted exclusively to the sovereign will of the
legislature. It was made clear, also by the subsequent Article 5 of the 1804 Code
civil, that judges are not supposed to make law. They are not allowed to make any
normative pronouncements beyond the individual case and their only source of
reason is the legislative will of the Parliament.6
The former purpose results in the duty to put reasons into written form. The
latter into the duty to put them in a particular form, where the only source of law
openly disclosed is the will of the national legislator. French decisions have thus
acquired, and have ever since largely retained, the appearance that the only relevant
authority in judicial decision-making is the will of the legislator as expressed in the
cited codes and statutes.7
The argumentative brevity of the French highest judicial decisions has been
repeatedly challenged on various grounds: social irresponsiveness and illegibility as
far as the reasoning style and the language are concerned; the failure to explain and
3 Lasser (n 2) 179–202. On the rich internal debates in the CdE, see in English also B Latour, The
Making of Law: An Ethnography of the Conseil d’État (Polity 2010).

4 Further see, eg: J Krynen, L’Etat de justice France, XIIIe–XXe siècle. Tome II: L’emprise contempor-
aine des juges (Gallimard 2012) 21ff.

5 CJ Guillermet, La motivation des décisions de justice: La vertu pédagogique de la justice (Harmattan
2006) 17. See also: P Godding, ‘Jurisprudence et motivation des sentence, du moyen âge à la fin du 18e
siècle’ in C Perelman and P Foriers (eds), La motivation des décisions de justice (Bruylant 1978).
6 See generally: T Sauvel, ‘Histoire du jugement motivé’ (1955) 61 Revue du droit public et de la
science politique en France et a l’étranger 5, 43–9.

7 It is nonetheless questionable whether the observance of these formal requirements eventually
bound French judges more than their colleagues from other countries, or rather set them completely
free from any constraints. Critically see JP Dawson, The Oracles of the Law (The University of
Michigan Law School 1968) 431. See also L Montazel, Entre faits et droit: histoire d’un pouvoir
judiciaire. Les techniques de la cassation civile en France et en Allemagne au XIXème siècle (Klostermann
1998) 88, who claimed that by the end of the 19th century, the Cour de cassation had acquired
normative powers similar to the ancient parlements, just named differently.
The Doctrine 99
to convince the parties to the dispute as well the general public, thereby also failing
to fulfil the broader societal (didactical) role of justice; lack of transparency of the
judicial decision-making; and inability to further develop the fine nuances in
modern case law and instead repeating old and outdated categories, thus enhancing
the overall uncertainty as to what the applicable law actually is.8
In spite of the challenges, the tradition lives on. The respective provisions of
written laws are still today essentially the only visible authority to which a French
judicial decision is allowed to refer. Only such a reference constitutes a permissible
‘legal’ argument. This convention has recently been somewhat eroded by the occa-
sional inclusion of a reference to the decisions of the Court of Justice of the EU, the
European Convention, or the ECtHR, in particular in the decisions of the Conseil
d’Etat. This is, however, the exception that confirms the rule, taking into account the
fact that the overall convention regarding the ban on citing of national case law still
remains intact. All other types of references and arguments, including reference to
previous case law, legal scholarship, and also comparative arguments, are excluded
from a judicial decision. They would be regarded as impermissible arguments, having
no place in a judgment of a court.9
In such an institutional and procedural setting, there is no place for open
reference to a comparative argument in the decision itself. If the system does not
allow for the citation of its own case law and scholarly works, it is clear that it will
not be open to explicit references to arguments out of foreign law. A study on the
French practice of the use of comparative arguments by courts can thus only be
indirect, drawing on various indirect hints of comparative considerations by courts
which have leaked out from the internal judicial sphere into the open.
2. The Doctrine
The classification of the types of legal arguments used in the interpretation of
statutes in France is essentially of scholarly origin.10 The French interpretative
doctrines are perhaps not as detailed as their German counterparts, which will be
examined in detail in the following chapter. Standard French theoretical works
typically give just a concise account of the types of arguments used by courts.
8 See especially: A Touffait and A Tunc, ‘Pour une motivation plus explicite des décisions de
justice notamment de celles de la Cour de cassation’ (1974) 72 RTDC 487, 492–501; R Lindon, ‘La
motivation des arrêts de la Cour de cassation’ [1975] La Semaine juridique (I—Doctrine) 2681;
F Berenger, La motivation des des arrêts de la Cour de cassation (Presses universitaires d’Aix-Marseilles
2003) 68ff. See also: A Garapon and I Papadopoulos, Juger en Amérique et en France: culture juridique
française et common law (Odile Jacob 2003) 198–226.
9 For a traditional account, see, eg: P Mimin, Le style des jugements (4th edn, Librairies techniques
1978) 273–84.
10 The exceptions include specific provisions governing the construction and interpretation of
contracts in Art 1156ff of the Code civil and also some criminal law specific provisions on the narrow
construction of criminal law provisions in Art 111 (4) of the Code pénal. See generally: M Troper,
C Grzegorczyk, and J-L Gardies, ‘Statutory Interpretation in France’ in N MacCormick and
R Summers (eds), Interpreting Statutes: A Comparative Study (Ashgate 1991).
100 France
2.1. The Exegesis

The origins of modern French rules on statutory interpretation go back to the birth
of the Code civil, in particular to the Livre préliminaire of the Code civil and the
pronouncements of Portalis relating to it.11 The original version of the Livre
préliminaire, later however not adopted, contained in its Fifth Title rules on
application and interpretation of the laws. The original version recognized a distinct
interpretative space in the judicial application of the Code. Article 2 of the Fifth
Title stated that laws must be interpreted by judges and that while interpreting the
Code, judges can be aided by legal scholarship, general legal principles, and,
implicitly, also by case law. Article 5 of the Fifth Title foresaw that there could
be situations in which the law would not be clear. In such cases, the judge was to
interpret the law in its natural sense and in the way it could be best applied in
practice.
The philosophy underlying these provisions was reflected in the Discours on the
Livre préliminaire delivered by Portalis. He cautioned against the ‘dangerous
ambitions’ of wishing to provide for everything in the Code. Not only would
such legislative complexity be impossible; it would also be dangerous. It would
impede the natural evolution of society and legal life. A degree of judicial discretion
and equitable decision-making in a particular case beyond the Code was thus
inevitable. Portalis concluded with a rather bold statement for the prevailing
societal visions of judicial function at that time, namely that judges were there
before there were laws.12 Portalis’ realist visions found, however, little understand-
ing in discussion in the CdE during the process of the adoption of the Code civil,13
and were ultimately rejected.14
The subsequent mainstream French legal scholarship is commonly described as
the Exegetic School.15 Its attention was turned towards the Code and other French
codifications. The task of the day was to flesh out the new codes, to systemize, to
infer guiding principles, and to study rigorously the preparatory texts. The method
11 ‘Projet de la Commission du gouvernement, présenté le 24 thermidor an VIII, livre préliminaire’
and ‘Titre préliminaire, De la publication, des effects ed de l’application des lois en général, présenta-
tion au Corps législatif, exposé des motifs par le conseilleir d’Etat Portalis, 4 ventôse an XI’, both texts
reprinted in PA Fenet, Naissance du Code civil: An VIII – an XII—1800–1804 (Flammarion 1989)
89–133.
12 Fenet (n 11) 39–51 and 128–33.
13 R Saleilles, ‘Le Code civil et la méthode historique’ in Le Code civil 1804–1904: Livre du
centenaire (Artur Rousseau 1904) 95–130, 101–2 (quoted from a reprint published by Dalloz in
2004) recounts the reaction of French appellate courts (Montpellier, Rouen) who rejected the project
of the Livre préliminaire stating that it gave too much latitude to the judges and that it might lead to the
destruction of the Code.
14 For the type of objections levied against the draft presented by Portalis, see Saleilles (n 13)
116–28. The overall sentiment was that the Livre préliminaire was giving too much power to the
judges. It was thus discarded. Only eight (reformulated) Articles were eventually taken over into the
final redaction of today’s Titre préliminaire.
15 See generally: J Charmont and A Chausse, ‘Les interprètes du Code civil’ in Saleilles (n 13)
131–72; P Jestaz and C Jamin, La Doctrine (Dalloz 2004) 71ff; E Gaudemet, L’interprétation du Code
civil en France depuis 1804 (La Mémoire du Droit 2002) 57ff.
The Doctrine 101
was internal analogy and logic. The degree of the perceived internal fullness and
self-sufficiency can perhaps be captured in the very names of the subjects taught in
French universities in mid-19th century: a course on civil law ceased to be called
‘Civil law’ or ‘Roman law of obligations/delict/etc’, but became the ‘Cours analy-
tique de Code civil’ or the ‘Cours de Code civil français’.16
The dominant judicial method became the legal syllogism.17 The facts matched
with the pertinent provision of the Code were believed to provide an answer to any
legal question. In the case of interpretative problems which could not be deduced
from the ‘clear’ wording of the text, reference was to be made to the original
intention of the legislator, as evidenced in the travaux préparatoires. In the context
of the interpretation of the Code civil as well as other codifications of the early-19th
century, this essentially brought about, on the surface and in the official rhetoric,18
a certain motionlessness into the process of legal interpretation: the will of the
legislator was associated with his subjective historical views as they stood at the
period of the adoption of the codes.
2.2. Gény and the libre recherche scientifique

The late-19th and onset of the 20th century brought challenges to the exegetical
approach. One of the most elaborate challenges was put forward by François
Gény.19 Gény’s work was a reaction to the adoration of codes by the legal practice,
or their fetishism, as the less diplomatic expression of the day had it. His work was
chiefly concerned with how to effect legal change within the structure of by then
already one century old codifications. Gény did not propose, as sometimes carica-
tured by his opponents, to abandon the texts of the codes and start creating judge-
made law. His propositions, encapsulated in the theory of the libre recherche
scientifique, were more modest. The starting point for any interpretation would be
the provisions of the Code civil. However, beyond the text, it was necessary to
(openly) recognize that in some cases, there might be gaps in the codifications or that
as far as some provisions were concerned, the old codifications might be in need of
an update. It was at that moment, in Gény’s point of view, that the libre recherche
scientifique was called on to fill the gap or carry out legal renewal. The methodology
that Gény built around this notion20 comprised considerations based on a pool
of broader arguments (scientific facts, statistical data, psychological, sociological, or
historical elements) as well as the case law of courts (la jurisprudence). Finally, an
16 Charmont and Chausse (n 15) 158 and 162.

17 See generally: J Ghestin and G Goubeaux, Traité de droit civil (3rd edn, LGDJ 1990) 36–47.
18 Critically, however, claiming that this was just the official rhetoric visible on the surface, see eg:
F Berenger, La motivation des des arrêts de la Cour de cassation (Presses universitaires d’Aix-Marseilles
2003) or M Gläser, Lehre und Rechtsprechung im französischen Zivilrecht des 19. Jahrhunderts (Klos-
termann 1996) 120, 137, 164.
19 F Gény, Méthodes d’interprétation et sources en droit privé positif: Essai critique (2nd edn, LGDJ
1919).
20 Gény (n 19) vol 2, 76ff.
102 France
additional element of the libre recherche, which appeared in the postscript to the
second edition of the Méthodes, is comparative law.
Gény’s work, which apparently failed to secure many followers amongst the
French magistrature,21 should be understood as a specific reaction to the exegetic
tradition of the 19th century. In this respect, the French development is parallel to
the German one, where the revolt against the historical school brought forth new
strands in legal interpretation.22 The importance of Gény’s challenge lay in the
proposal for enlargement of the pool of legal sources. In the traditional view, which
still holds true of the French judicial style, the only openly (formally) acknowledged
source of a judicial decision is the (national) statute. What Gény in fact suggested
was to incorporate into these sources also the case law and scholarship, as well as
various broader arguments, including comparative inspiration.
In the traditional exegetic approach, there is little place for comparative analysis
of law for the purpose of its domestic application. If a rule cannot be deduced from
the text of the code, then the original will of the legislator as it stood at the time of
the adoption of the code is to be ascertained. Dogmatically speaking, the codifica-
tions create a seamless normative web which covers all possible situations. An
applicable rule is either already written in the code or if it is not, it can be deduced
from the original legislative intent. It is the recognition of gaps and an effort to deal
with them as put forward by Gény which not only challenges this traditional vision
but, at the same time, opens the door to comparative arguments in adjudication.
Gény expressly made this opening in the ‘Epilogue’ to the second edition of his
Méthodes. There, drawing inspiration from the works of Raymond Saleilles,
Édouard Lambert, and the proceedings of the first Congrès international de droit
comparé, held in 1900, he integrated comparative law into his libre recherche
scientifique.23
One of Gény’s central points within the libre recherche scientifique was, however,
to render such ‘free search’ for applicable law objective. Arbitrariness and subject-
ivity in adjudication were the proclaimed key evils of the ancien régime. The
reaction to them was to bind the judge to the letter of the positive law. Thus,
when a century later the legal doctrine seeks to ease the grip of the codes, it must
still be wary of the need for objectivity (or at least the appearance of it) in any
interpretative exercise which is to be proposed.
Gény therefore always stressed that his method, albeit ‘free’, was strictly object-
ive. Gény did in fact not foresee, when integrating comparative analysis as one
of the possible arguments of the recherche libre scientifique, that French judges
would deal directly with comparative law. That would be too subjective and
arbitrary. Instead, he suggested two indirect ways in which comparative arguments
could enter national law. First, it could happen through scholarly elaboration of
21 Troper, Grzegorczyk, and Gardies (n 10) 179; F Terré, Introduction générale au droit (4th edn,
Dalloz 1998) 457.

22 Gény acknowledged comparative inspiration from the German and Austrian ‘Freirechtsschule’ in
ch 4 of his postscript to the second edition of the ‘Méthodes’ (n 19) 330ff.

23 Gény (n 19), vol 2, 267–75.
The Doctrine 103
(ideal) common legislative models (droit commun legislatif ), which would be

created by the scholarship and from where they could be taken over by the courts
(la jurisprudence).24 Alternatively, the second route for comparative inspiration into
the national legal system foreseen by Gény was as evidence of a legal custom. From
the fact that a certain solution is shared in various legal systems can be inferred
societal consensus, ‘une sorte de conscience juridique collective’, which in turn
could be taken as an evidence of an already formed legal custom.25
In sum, Gény’s reaction to the Exegetic School can be perceived as an instance of
dynamic interpretation of the law contrasted with the static one. His work aimed at
bringing dynamic elements into legal interpretation, drawing on extra-legal and
extra-systemic inspiration to render law more responsive and open.26
2.3. Saleilles and the Search for Objective Judicial Comparisons

The judicial use of comparative law found a more detailed elaboration in the works
of Gény’s contemporary, Raymond Saleilles.27 It was perhaps Saleilles who, for the
first time, suggested in the French scholarly writings that comparative law could
have a function in the interpretation of purely domestic legal rules. In various works
produced by Saleilles over the years, the use of comparative analysis by courts was
named differently: it was called, for instance, one of the demonstrations of ‘droit
naturel’28 or ‘droit commun international’.29
The overall scheme and the role assigned to the use of comparative law by courts,
however, remained largely the same. Similarly to Gény, a strong theme in Saleilles’
writings was to assert, being mindful of the historical French sensitivities towards
the arbitrary in the judicial applications of the laws, that comparative analysis is an
objective scientific method. In order to be objective, the judge must have a point of
reference, which is exterior to his personal convictions and which is unique.
However, how can comparative analysis, which is by its nature multi-polar, offer
a unique and objective source of inspiration for the national judge? Essentially by
not asking judges to make any comparative choice by themselves, but by referring
them to a third, independent corpus of ‘natural law’, or ‘common international
law’, which would be elaborated through comparisons by the legal scholarship.30
24 Gény (n 19) 271.

25 Gény (n 19) 274–5.
26 Certainly as far as the official rhetoric of the system was concerned; as far as the substance of the
suggestions was concerned, it has been suggested that Gény’s new method was in fact less of a
revolution and more of a call for the acknowledgement of the actual practice of the French courts at
the beginning of the 20th century—see Gläser (n 18) 167.
27 See generally: LJ Constantinesco, Rechtsvergleichung: Band I (Carl Heymanns 1971) 165–72 or A
Aragoneses, Recht im Fin de siècle: Briefe von Raymond Saleilles an Eugen Huber (1895–1911)
(Klostermann 2007) 41–6.
28 R Saleilles, ‘École historique et droit naturel’ (1902) I Revue trimestrielle de droit civil 5.
29 R Saleilles, ‘La fonction juridique du droit comparé’ in F Berolzheimer (ed), Juristische Festgabe
des Auslandes zu Josef Kohlers 60. Geburtstag (Enke 1909).

30 Saleilles (n 29) 169; Saleilles (n 28) 104.
104 France
Saleilles thus excluded horizontal or direct comparisons carried out by the judges
themselves. ‘Comparative analysis’ by courts in his view would always constitute the
reference to a ‘common international core’, however labelled, which was elaborated
by the legal scholarship or by the legislator in the process of international unification
or harmonization of the laws. Such use of comparisons with the ‘international
common’ would have a strictly subsidiary and supplementary role. It would function
as a source d’orientation and would, in no way, question the validity and primacy of
the national statutory laws as well as the national scholarship.31
2.4. The Modern Entry Points: Dynamic Interpretation,

Standards, and Gaps
The position taken by more current mainstream French doctrine is, on substantive
grounds, somewhere in the middle. In scholarly works, Gény’s opinions would be
discussed, but rather as ‘the opposition’ to the traditional 19th-century approach
than anything which would be genuinely supposed to be followed. Libre recherche
scientifique is typically included under the heading of ‘modern’ methods of inter-
pretation, together with teleological reasoning (mèthode du but social) and dynamic
interpretation (mèthode évolutive).32 More current positivistic works suggest that
there is a plurality of methods of interpretation, which are mutually non-exclusive
but rather supplement each other.33
Notwithstanding the fact that Gény’s method does not appear to be embraced
much either by the scholarship or by the judicial practice, the other two ‘modern’
methods have in fact superseded the libre recherche scientifique in its quest for the open
accommodation of change into the law. What they both have in common with the
libre recherche scientifique is the integration of arguments and considerations going
beyond the intention of the historical legislator. They are socially responsive and seek
to reflect changed circumstances in the contemporary interpretation of older texts.
Especially the dynamic method allows for adaptation in the judicial interpretation of
the law: it means interpreting the law in the light of a conjured legislative intent a
reasonable legislator would have if she adopted the same law today.
Comparative arguments may come under the heading of any of the two of the
‘modern’ methods of interpretation. Comparative reasoning can provide guidance
as to what could have been a sample ‘contemporary’ intention of a modern
legislator within the dynamic method, by looking at, for instance, a newly adopted
legislative solution for the same legal problem in another country. The same applies
to the reasoning out of the purpose, aim, and/or effective functioning of the
31 Saleilles (n 28) 112.

32 See, eg: J Carbonnier, Droit civil: Tome 1 (14th edn, Presses Universitaires de France 1982)
182–91; G Cornu, Droit civil: Introduction, les personnes, les biens (7th edn, Montchrestien 1994)
133–9.
33 See, eg: Terré (n 21) 471–9; in the Belgian context, see F Ost and M van de Kerchove, Entrée la
lettre et l’esprit: Les directives d’interprétation en droit (Bruylant 1989) 119–45; or, with respect to
Luxembourg, P Pescatore, Introduction à la science du droit (2nd reprint, Université de Luxembourg
2009) 331–55.
The Doctrine 105
adopted legislation. In such situations, one again reaches for values and consider-
ations which may be external to the current statutory system.
There are, however, three further ‘entry points’ through which comparative
considerations may enter the interpretation of French law in purely domestic
situations: in cases of the interpretation of indeterminate legal notions or, as the
French doctrine rather calls them, the ‘standards’; in gap closing; and in the
elaboration of general principles of law.
First, Stéphane Rials34 suggested that the introduction of ‘standards’ (indetermin-
ate legal notions) into French legislation and, above all, into the reasoning of French
administrative judges, came after the First World War and accelerated after the
Second World War. He explained this rise by four factors: the crisis and instability of
France after both wars, which needed to provide for flexibility in legal rules; academic
movement which took standards aboard and encouraged them; the opening of the
French law to comparative reasoning; finally, the rise of the amount of litigation in
administrative courts and the submission of even greater areas of societal life to
judicial control.35 Most importantly, however, Rials claimed that there is a direct link
between the rise of standards and the rise of comparative law:36 the more indetermin-
ate legal notions a legal system contains, the greater the need for extra-systemic
inspiration in filling them with reasonable content in the process of interpretation.
Second, the use of comparative arguments in gap filling had been a contentious
issue in the French legal scholarship. In contrast to the already mentioned Porta-
lis,37 the exegetic stream had problems conceptually recognizing the existence of
gaps in the Code.38 More (socially) critical studies would, however, not just
recognize the existence of gaps, but also acknowledge that while filling in such
gaps, the judge act as a legislator.39
Finally, comparative arguments may also be employed in the development of
general principles of law.40 This would be, however, entering the area of unwritten
law, basically the sphere of modern custom. General principles of law would
nonetheless provide just an additional (auxiliary) interpretative category, as an
evidence of an established custom.
In conclusion, it is evident that the more the French doctrine departs from the
conviction of the interpretative self-sufficiency of the Code civil and other codifi-
cations, the greater potential for comparative considerations. There is ample space
34 S Rials, Le juge administratif français et la technique du standard: essai sur le traitement jurisdic-
tionnel de l’idée de normalité (LGDJ 1980).

35 Rials (n 34) 206.
36 Rials (n 34) 208.
37 See n 11.
38 See generally: C Perelman (ed), Le problème des lacunes en droit (Bruylant 1968).
39 See, eg: A Tunc, ‘La méthode du droit civil: Analyse des conceptions françaises’ (1975) 27 RIDC
817, 821–4 or S Belaid, Essai sur le pouvoir créateur et normatif du juge (LGDJ 1974) 310–15. A recent
general discussion is offered by P Avril (ed), La création du droit par le juge (Dalloz 2006).
40 M Letourneur, ‘L’influence du droit comparé sur la jurisprudence du Conseil d’Etat français’ in
Livre du centenaire de la Société de législation comparée (LGDJ 1969) 213; MC Ponthoreau, ‘L’argu-
ment fondé sur la compaison dans le raisonnement juridique’ in P Legrand (ed), Comparer les droits,
résolument (Presses Universitaires de France 2009) 555.
106 France
for such enterprise within the ‘modern’ positivistic methods of legal interpretation.
There are, however, also other in-built mechanisms, which may open up the space
for comparative reasoning—‘standards’ or indeterminate legal notions, gaps filling,
and the elaboration of general principles of law.
3. Judicial Views
Because of the specific French style of reasoning of judgments, there are no
pronouncements as to the status of comparative reasoning in the judicial forum.
The only source of judicial views on what comparative reasoning constitutes in
methodological terms thus consists of extra-judicial writings of the members of the
high jurisdictions in question. These writings41 typically stress how important
comparative reasoning is for a judge in the respective jurisdiction and give a few
examples as to when they or their colleagues were influenced by foreign inspiration.
In a recent contribution, a prominent proponent of the use of comparative
reasoning in French courts, Guy Canivet, suggested that there is a growing influ-
ence of comparative law within the ‘open methods of interpretation’. Whereas,
under the reign of the exegetical school, little space for judicial invention was left
open to judges, the ‘open methods’42 allow for elements external to the text of the
law to be incorporated.43 Canivet suggested that resort to comparative law may be
found in situations when
[t]he national law has the need to be completed or modernised; when the judge rules on
the great societal issues; when the question is common to several countries; when the
solution has an economic dimension that exceeds the limits of the legal system in which
it applies; and, finally, when it is a question of deciding purely technical matters.44
More sceptical visions of the judicial use of comparative reasoning have, however,
also been voiced, especially in the context of constitutional adjudication. The
opinion of Georges Vedel, former member of the Conseil constitutionnel, is instruct-
ive in this respect. It should be noted that the overall topic of the debate was not the
use of comparative law, but national sovereignty in the aftermath of the Treaty of
41 For the Cour de cassation, see, eg: G Canivet, ‘The Practice of Comparative Law by the Supreme
Courts: Brief Reflection on the Dialogue between the Judges in French and European Experience’ in
B Markesinis and J Fedtke, Judicial Recourse to Foreign Law: A New Source of Inspiration? (UCL Press
2006) or G Canivet, ‘The Use of Comparative Law Before the French Private Law Courts’ in
G Canivet and others (eds), Comparative Law before the Courts (BIICL 2004); M Rolland, ‘La
magistrature française devant le droit comparé’ in Livre du centenaire de la Société de législation comparée
(LGDJ 1969). For the Conseil d’Etat, see, eg: R Errera, ‘The Use of Comparative Law Before the
French Administrative Law Courts’ in G Canivet and others (eds), Comparative Law before the Courts
(BIICL 2004) or Letourneur (n 40). For the Conseil constitutionel, see, eg: O Dutheillet de Lamothe,
‘Constitutional Court Judges’ Roundtable—Comparative Constitutionalism in Practice’ (2005) 3
I-CON 550.
42 Essentially those described above (n 32) as ‘modern’ methods in the terminology of
J Carbonnier.
43 Canivet, ‘The Practice of Comparative Law by the Supreme Courts’ (n 41) 316–17.
44 Canivet, ‘The Practice of Comparative Law by the Supreme Courts’ (n 41) 321.
The Practice 107
Maastricht and the corresponding decision of the CC. Even so, the opinion voiced
is very illuminating as far as the positivistic tradition and its stance towards any legal
norms external to the French legal system are concerned. The issue concretely
discussed was the possibility of the CC applying norms of supra-constitutional
character, which would presumably be inferred from some unwritten, inter-
national, or foreign principles. Vedel opposed such a view, stating that:
[t]he Conseil constitutionnel has so far been on guard against listening to the Sirens of
supra-constitutionality. Succumbing to that seduction would cause the loss of its
legitimacy ( . . . ) the allegedly supra-constitutional norm is neither written nor can it
be grasped anywhere; it is but the product of individual perception ( . . . )
The fact that comparative law is being invoked in support of supra-constitutionality
cannot undermine the up-to-date opinion of the Conseil constitutionnel, namely that
the legislator can be legally sanctioned or censored only with the reference to a written
constitutional provision. It is necessary to abandon the idea that this or that theory, this
or that experience, represented by a foreign constitutional court in a (sometime young)
democracy, is to be universally imposed similarly to the latest trend in female fashion
launched in the spring collection.
( . . . ) a reference to supra-constitutionality does not allow filling in gaps in a
constitution. A constitution that provides for the norm-making powers of designated
authorities, as does our constitution, contains no gaps. The alleged gap in the form of
the silence of the constitution with respect to a specific issue is simply a reference back
to either the constitution-maker or the legislator to provide for the issue in question.45
There is very little one may add to this succinctly put vision of judicial function and
the role of comparative law in constitutional interpretation. Alleged gaps in the
constitutional text are to be filled in by those entitled to adopt or implement a
constitution: the constitution-maker or the legislator. Constitutional judges are,
first, not entitled and, secondly, have no capacity to fill the gaps (certainly not
unless they closely follow the latest trends in female fashion).
The majority of the current judicial voices46 find themselves somewhere in the
moderate middle between the two poles outlined above, with an approach that could
be labelled as a cautious ‘yes, but’. They approve of comparative inspiration in
general, but point either to problems in the study of foreign law as such (it is difficult
to get it right) or to technical problems (no time, resources, energy). Finally, it would
also be pointed out occasionally, especially in the older writings, that to receive
inspiration from abroad has only a limited tradition in the French legal culture.
4. The Practice
The bifurcation of the French legal discourse and the importance of the internal
debate hidden from the eyes of the public are the reasons for the lack of any
comprehensive survey of the actual practice of comparative reasoning before the
45 G Vedel, ‘Souveraineté et supraconstitutionalité’ (1993) 67 Pouvoirs 79, 95–6.

46 Quoted above (n 41).
108 France
French highest courts. With only a segment of the real judicial motives being
displayed in a written decision, it is impossible to reconstruct all the sources of a
judicial decision, even for another professional within the system.47
In the past, the limited accounts of the practice available were typically authored
by the members of the respective jurisdictions. More recently, with the gradual
opening of the highest judicial discursive sphere to the public and the wider
publication of additional background documents by the courts (reports of the
reporting judge, conclusions or avis, or information dossier on the case), several
academic studies have appeared as well.
4.1. Indirect Evidence of Comparative Analysis

When looking for comparative arguments in the reasoning of the French highest
jurisdictions, it is necessary to examine the documents preceding the decision and
the documents accompanying it or later explaining it. These documents can
indirectly hint at comparative influence which, however, will never be openly
displayed in the decision itself.
First and foremost, there is the judicial file, in which all the information
concerning the proceedings is assembled. It may contain sources which will not
appear in any of the documents mentioned below. There might be, however,
comparative information already contained therein, for instance if the reporting
judge, the president of the chamber, or the rapporteur public/avocat général were to
request some comparative analytical assistance from within the court48 or from
outside.49 Such assistance will not later be openly acknowledged.
However, apart from the judicial file, which is not accessible to the general
public,50 indirect hints as to comparative inspiration present in judicial decision-
making could be found in:
47 F Berenger quotes in this respect an amusing and, at the same time, striking account of how even
other members of the Cour de cassation have difficulties in understanding what another chamber of the
CdC decided and why. He recounts the story of M Touffait, then the procureur général at the CdC,
who used to receive ex officio a copy of all the decisions rendered by the CdC. One day, he received a
decision he did not understand. He picked up the phone and called the avocat général who had
submitted the opinion in that case, complaining about the lack of understandability of the decision.
The avocat général was said to reply: ‘( . . . ) but of course, Mr procureur général, you cannot understand
the decision as you did not take part in the deliberations’—Berenger (n 18) 70.
48 The CdE disposes of an internal analytical department, which recently became Centre de
recherches et de diffusion juridiques. The CdC has a dedicated Service de documentation et d’études.
The corresponding department within the CC is the (comparatively modest) Service Documentation—
Bibliothèque—Internet.
49 Former First President of the CdC, G Canivet, mentioned the practice to request, in novel cases,
a research report from the French Comparative Law Institute. These reports were then notified to the
parties and to the Ministère public. See Canivet, ‘The Use of Comparative Law Before the French
Private Law Courts’ (n 41) 191. The French Ministry of Justice also had, for quite a long period of
time, a dedicated ‘Service de legislation étrangère’, which was, however, little known amongst the
judges—R Legeais, ‘L’utilisation du droit comparé par le tribunaux—Rapport français’ in
U Drobnig and S Van Erp (eds), The Use of Comparative Law by Courts (Kluwer 1999) 119.
50 At least before the lapse of certain time; on the other hand, once the judicial archives become
open, potential comparative inspiration in older cases can be detected from the file, as is the case with,
for instance, the recent opening of the archives of the CC. Further see: A Le Quinio, Recherche sur la
The Practice 109
- conclusions/avis of the rapporteur public/avocat général;

- bibliographical references to the foreign case law published in the collection of
decisions of the court;
- ‘dossiers’ of background information compiled and published by the court
itself;
- annual reports containing the review of the activities of institution;
- extra-judicial writing of members of the court;
- scholarly reviews of decisions (notes d’ârret).
Conclusions by the rapporteur public in the CdE (RP) or by an avocat général in the
CdC (AG) provide an important indication for comparative considerations being
present in the decision-making within the high jurisdictions. The role of an RP or an
AG is to propose independent and reasoned opinions to the court.51 The fact that the
RPs, previously (and traditionally) called commissaires du gouvernement (CdG), were
present in the deliberations of the CdE (although they had no right to vote) led the
ECtHR in the Kress decision to the conclusion that such a procedure violates
Article 6 (1) of the European Convention.52 The decision of the ECtHR caused an
institutional reshuffle, following which the commissaire du governement was also
renamed and became the rapporteur public. In cases in which the conclusion/avis of
the RP or AG are published, they offer a privileged view of a much greater variety of
sources, which have been relevant for the court, but which never appeared in the
decision itself.
The CdC has also started publishing53 the reports of the reporting judge. These
reports are, together with the opinion of the AG, available in a limited number of
cases only. On the other hand, these tend to be the most important cases, typically
with the full court sitting or the most important chamber decisions. In such
decisions, one can assume that there would be the greatest likelihood of any
comparative endeavour being carried out.
The inclusion of references to foreign cases in bibliographical references in the
Recueil Lebon is a relatively recent change. In most cases which are reported in
Lebon, there is a reference to further cases relating to the decision. These biblio-
graphical notes are situated at the end of a decision but before the (if included)
conclusions of the RP. They typically contain references to previous case law of the
CdE and perhaps other French courts and also an ever-growing number of
references to the decisions of the Court of Justice of the EU and the ECtHR.
circulation des solutions juridiques: le recours au droit comparé par les juridictions constitutionnelles
(Fondation Varenne 2011) 378–9.
51 On their origins, see: T Sauvel, ‘Les origines des commissaires du gouvernement auprès du
Conseil d’Etat statuant au contentieux’ (1949) 55 Revue de droit public et de la science politique en
France et à l’étranger 4; a recent comparative discussion is offered by M Bobek, ‘A Fourth in the Court:
Why Are There Advocates General in the Court of Justice?’ (2011–2012) 14 Cambridge YELS 529.
52 Judgment of 7 June 2001, Kress v France, application no 39594/98, ECHR 2001-VI; further see
eg: B Genevois, ‘Le commissaire du gouvernement et les exigences du procès equitable: L’ârret Kress de
la CEDH du 7 juin 2001’ [2001] RFDAdmin 991 or J Andriantsimbazovina, ‘Le commissaire du
gouvernement près le Conseil d’Etat et l’article 6 } 1 de CEDH’ [2001] Dalloz Chron 1188.
53 At its website: <http://www.courdecassation.fr>.
110 France
Fabrice Melleray observed54 that the documentation service, which prepares the
data for the Recueil Lebon, has started to include also references to foreign decisions
under the introduction ‘Rappr.’, meaning ‘rapprocher’, ie ‘compare’ or ‘see further’.55
He mentioned five instances in the Lebon 2006 and 2007 in which such references to
foreign case law were introduced: two references to decisions by the Supreme Court of
Canada,56 two references in one decision to the Italian Constitutional Court,57 and
the last one to the Spanish Constitutional Tribunal.58 References to the case law
of other Member States also appeared in the high-profile Société Arcelor Atlantique et
Lorraine case, where the CdE referred to similar primacy-related cases of the German
and Italian Constitutional Courts. The references are, however, in total not more
numerous than those identified by Melleray: no further references appear in Lebon for
2007 and 2008.
The ‘dossier’ is a collection of background information to the text of the decision,
nowadays typically accessible online, which is compiled with respect to important
cases. It may also include ‘analyse’ in case of the CdE or commentaries in the ‘cahiers’
in case of the CC, where further information of an analytical nature on the case law,
references to scholarly works, and other analytical tools are contained. Occasionally,
the dossier also includes references to similar cases from other jurisdictions.59
Annual reports released by the high jurisdictions normally contain not only the
review of their decisions in the past year, but also special reports on a given subject,
often comparative. These may be perceived as tools of exchange of comparative legal
information, which serve a dual aim: not only to inform foreign lawyers of recent
developments in French law, but, in the part dealing with comparative studies, to
inform French judges of trends elsewhere. These reports exercise a certain influence
on decision-making in the Cour de cassation as well as the CdE.60 Both institutions,
especially the CdE, also publish various thematic studies, often comprising com-
parative elements. Finally, very good comparative parts are offered in Les Cahiers du
Conseil constitutionnel, published bi-annually and accessible also online.61
54 F Melleray, ‘L’utilisation du droit étranger par le Conseil d’Etat statuant au contentieux’ in Le
dialogue des juges: Mélanges en l’honneur du président Bruno Genevois (Dalloz 2009) 784.
55 Lebon itself defines this heading in its notice to readers as ‘renvoie à une décision intervenue dans
un contexte juridique différent de celui de la décision analysée ( . . . ) mais dans laquelle a été retenue
une solution juridique analogue’.
56 CE Ord. 27 May 2005, Section française de l’Observatoire international de prisons et autres [2005]
Lebon 232, 233; CE Ord. 6 March 2006, Association United Sikhs et Mann Sigh [2006] Lebon 111,
112.
57 CE 8 September 2005, Garde des sceaux, ministre de la justice c/B. [2005] Lebon 388, 389.
58 Decision of the Assemblée du contentieux of 8 February 2007, case no 287110, [2007] Lebon
55, 60.
59 Decision of CC of 28 April 2005, no 2005–541 DC, Loi relative à la création du registre
international français, Rec. 78, provides an example in this respect. In this case, a previous decision
of the German Federal Constitutional Court on the same issue, from which the CC most likely took its
inspiration (Le Quinio, n 50, 299–300), is referred to approvingly with an extract translated into
French in the documentation dossier to the case (Cahier du Conseil constitutionnel n 19/2005, 9).
60 Errera (n 41) 154 and 162–3 (with respect to the CdE) and Canivet, ‘The Use of Comparative
Law Before the French Private Law Courts’ (n 41) 192–3.

61 <http://www.conseil-constitutionnel.fr>.
The Practice 111
The last two categories of indirect evidence of comparative elements in the

judicial reasoning in high French jurisdictions are of scholarly provenience. First,
as already mentioned,62 there have been, over the last decades, several contributions
by members of the high jurisdictions acknowledging that the jurisdiction was
inspired by foreign law, albeit not expressly acknowledged. Second, the fact that
the court reached its decisions by following a foreign inspiration may not escape the
attentive eye of an ârretiste, ie to a legal scholar writing a case note on the decision.
Such case notes will contextualize and seek to ‘reconstruct’ the reasoning of the
court.63 The ârretistes would typically be aware of the earlier development of the
case law and the scholarly debates which preceded the court’s decision and thus able
to detect from where judges actually drew their inspiration.
4.2. Conseil d’Etat

The greatest scholarly attention to the use of comparative reasoning has so far
perhaps been paid to administrative courts. Pioneering work in this respect was
carried out by Jean Rivero and Maxime Letourneur in the 1960s and 1970s.
Letourneur, then conseiller d’Etat, opened his study on the influence of comparative
law on the case law of the CdE, published in 1969, by stating that the topic he was
about to embark upon would not have been imaginable twenty years before, ie after
the Second World War.64 This, in his view, was not primarily because of any
nationalistic pride of the French, but because up until the Second World War,
French administrative justice was the only genuinely fully-fledged model around. It
was therefore copied elsewhere rather than itself having had the opportunity to
copy from elsewhere. Letourneur was nonetheless able to identify three instances in
which the CdE drew foreign inspiration in its case law over the last two decades:
one from the Swiss Federal Tribunal, another from the Administrative Tribunal of
the International Labour Organization and yet another from the English courts.65
Rivero gave a similar account, albeit in a more theoretical guise, focusing on
comparative inspiration in the French scholarship of administrative law.66 He
distinguished three periods in the evolution of French administrative law and the
comparative inspiration it might have received from abroad in each of these periods.
After the Revolution but before 1871, French administrative law was unique and a
prime export article. From 1871 until the Second World War, French adminis-
trative law was still being exported, but some imports started happening as well.
The advent of German, Austrian, and partially also English modern legal doctrines
62 See n 41.
63 See, eg: E Meynial, ‘Les Recueils d’arrêts et les Arrêtistes’ in Le Code civil 1804–1904: Livre du
centenaire (Artur Rousseau 1904) or J Carbonnier, ‘Notes sur le notes d’ârrets’ (1970) Dalloz Chron
137. In English, see, eg: Neil Duxbury, Jurists and Judges: An Essay on Influence (Hart 2001) 48–54.
64 Letourneur (n 41) 211.
65 Letourneur (n 41) 213–17.
66 J Rivero, ‘Droit administratif français et droits administratifs étrangers’ in Livre du centenaire de la
Société de législation comparée (LGDJ 1969) and J Rivero, ‘Les phénomènes d’imitation des modèles
étrangers en droit administrative’ in Miscellanea W. J. Ganshof van der Meersch: Tome troisième
(Bruylant 1972).
112 France
of administrative law was significant and remained not unnoticed in French legal
scholarship. Since 1946, the view has changed completely: the international
exchanges multiplied and so did the need for foreign inspirations. At the same
time, in Rivero’s view, French administrative law no longer shines in such a way as
it used to before.
Subsequent discussion on the use of foreign inspiration is, however, rather
scarce. With the exception of the already mentioned work by Rials,67 there is little
evidence that comparative reasoning was actually being employed by the French
administrative judges. This fact led to the rather sceptical conclusions formulated
by Raymond Legeais in 1993 to the XIVth International Congress of Comparative
Law, in which he stated that although comparative inspiration is used in legislative
procedures, it is very limited in judicial work.68
A revival of interest in the administrative courts’ work with foreign inspiration
came in the new Millennium. In 2004, Roger Errera, former member of the CdE,
highlighted four areas of administrative law in which there was discernible com-
parative influence in the conclusions of the CdGs in the previous decade: state
liability, aliens’ rights, civil liberties, and the relationship between domestic and
international law.69 In his contribution, he identified more than a dozen such cases
in the period between 1985 and 2002, in which the CdG openly cited foreign
jurisprudence.
Recently, the same phenomenon has been explored by Fabrice Melleray.70 He
was able to identify several dozen cases in the period 1970–2007, in which CdGs
did expressly refer to foreign case law in their conclusions.71 Analyzing these cases,
he observed that all the references to foreign legal materials in the conclusions were
almost exclusively to the case law, thus leaving aside foreign scholarly works.72 In
respect of the actual legal systems to which the CdG referred, the first place was
taken by English and US law. The second place belonged to Canadian law. The
next group of cases were the selected judicial systems within the European Union,
namely Italy, Germany, Spain, and also Belgium. Finally, there were some occa-
sional references to other European countries, namely the Netherlands, Portugal,
and Greece.73
Also the most recent studies74 confirm that there is evidence of comparative
considerations in the conclusions of rapporteurs public, although in total numbers it
is negligible.75 It also appears that recently, for the first time ever, the contentious
67 See n 34. 68 Legeais (n 49) 113. 69 Errera (n 41) 156.

70 Melleray (n 54); F Melleray, ‘L’imitation de modèles étrangers en droit administratif français’
[2004] AJDA 1224; F Melleray (ed), L’argument de droit comparé en droit administratif français
(Bruylant 2007) 13–22.
71 Melleray (n 54) 779–93.
72 Melleray (n 54) 785.
73 Melleray (n 54) 786–9.
74 See C Mialot, ‘L’utilisation du droit compare par le Conseil d’Etat, un changement dans la
fabrique du droit’ [2010] AJDA 1462, 1463 and Le Quinio (n 50) 100–4.
75 Notably in CE 10 February 2010, Perez, req. no 329100 (conclusions of RP N Boulouis) or CE
30 October 2009, Perreux, req. 298348 (conclusions of RP M Guyomar).

The Practice 113
section of the CdE made reference in one of its opinions76 to legal situations in
other European states in support of its claim that the French legal regime of
holocaust victim indemnification is not unusual.77
In sum, it appears that the use of comparative reasoning by the CdE is modest. As
far as is detectable, it would include just a handful of cases annually. This represents
obviously only a tiny fragment in the total quantity of cases of which the CdE
disposes yearly.78 On the other hand, these cases are typically the significant ones, in
which the judges either face new issues or depart from previous judicial practice.
4.3. Cour de cassation

Writing in 1969, Gabriel Marty stated that to assess the influence of comparative
inspiration on the judicial decision-making in civil courts was, owing to inaccess-
ibility of the internal discursive sphere of the courts and the cryptic reasoning of the
Cour de cassation, impossible.79 He noted that traditionally, comparative argument
in civil law had been given attention in French scholarly works, going back to
names like Lambert, Lévy-Ullmannn, or David. The French scholarly comparative
tradition started with the ageing of the Code Napoléon; greater academic attention
to comparative argument was a distinct methodological reaction ‘contre le féti-
chisme de la loi et de son exégèse’.80 A French civil judge thus received comparative
inspiration indirectly, through scholarly works and arguments. Marty gave
examples of four issues in civil law, where French jurisprudence was altered
following comparative inspiration. The inspiration came mostly from the works
of German civil lawyers and the, at that time more modern, BGB.81
The optimism expressed by Marty as far as the impact of comparative method-
ology on the work of French civil judges was not universally shared. More sceptical
views from within the CdC later suggested that the role of comparative analysis in
the judicial work was very weak. The reasons for this were predominantly organiza-
tional rather than necessarily a dislike of comparative meditations: with the number
of cases the jurisdiction was (and still is) annually supposed to dispose of and the
workload, comparative self-indulgence might be perceived as a somewhat luxurious
76 According to Art 113–1 of the Code of Administrative Justice, lower administrative courts may
submit to the CdE questions concerning interpretation of law in disputes pending before them. The
CdE gives answers to the legal questions asked and notifies them to the submitting court which in turn
then accordingly decides in the pending dispute.
77 Avis du Section du Contentieux of 16 February 2009, Madame Madeleine A., req. no 315499,
where the CdE stated in passing and without further elaboration that the national indemnification
measures are ‘comparable, in their nature as well as in the amounts awarded, to those adopted in other
European states’.
78 For illustration: in 2009, the CdE decided 8816 cases; in 2008, it decided 8751 cases. In 2007, it
was 8780 cases and in 2006, it was 9736. These are consolidated figures, which do not include serial
cases and those cases which were summarily rejected. See: Rapport public 2010: Activité juridictionnelle
et consultative des juridictions administratives (La documentation française 2010) 30.
79 G Marty, ‘Les apports du droit comparé au droit civil’ in Livre du centenaire de la Société de
législation comparée (LGDJ 1969) 103.

80 Marty (n 79) 93. 81 Marty (n 79) 105–7.
114 France
enterprise.82 There still are instances of cases in which the use of comparative
inspiration was suggested either by the legal scholarship or by the judges them-
selves. These were, however, rather isolated cases.
A greater openness to comparative arguments by the CdC was recently repeat-
edly announced by its former First President, Guy Canivet.83 However, the
eloquent and convincing (scholarly) writings of the First President on the need
and the necessity for comparative reasoning by the French courts do not appear
to be matched by the reality and the actual practice of the CdC. In his writing,
Canivet mentioned just a handful of cases over the last decade, in which the CdC
drew inspiration from comparative law. This, however, appears to be somewhat
meagre evidence of a ‘rising practice’, especially if one takes into account the very
privileged position of the writer as far as access to internal information from the
CdC is concerned. If, even with such unrivalled capacity to provide examples from
the case law of the CdC, only very few cases are mentioned, the inevitable
conclusion from this contrast is that the statements made by the First President
were more likely to be normative and future-oriented, not necessarily reflecting the
past and current practice of the CdC.84
This is, however, perhaps not that surprising a finding in the case of the CdC,
whose traditional function has been extensive review and correction of individual
decisions. The CdC was established as the ‘bras séculier’ of the legislature, which was
there to protect the legislature (and thus indirectly the people) against the encroach-
ments of the courts.85 Over the centuries, it mutated into a regular supreme court.
Some of its initial visions and purposes, however, live on in the legal tradition. The
CdC thus still reviews thousands of decisions every year,86 while its function as
the reflective apex of the ordinary judiciary, which is there also to further develop the
law, finds itself more in the background. And so does comparative consideration.
4.4. Conseil constitutionnel

The degree of comparative inspiration in the CC is very difficult to assess. Similarly
to other French high jurisdictions, there is no direct reference to anything foreign.87
In contrast to the CdE or the CdC, however, there are also no conclusions or avis of
the RP or AG. The only very indirect hints suggesting that the CC might be aware
82 P Bézard, ‘Les magistrats français et le droit comparé’ (1994) 46 RIDC 775. At the time of
writing, Pierre Bézard was the president of the chambre commercielle of the CdC.
83 Cf works quoted at n 41.
84 In equally sceptical tone Le Quinio (n 50) 104–6.
85 On the ideological origins of the CdC, see eg: Krynen (n 4) 180ff; Gläser (n 18) 4–6; or
J Vincent and others, La justice et ses institutions (4th edn, Dalloz 1996) 392ff.
86 In 2009 the CdC rendered 20,402 decisions in civil matters; 18,684 in 2008; 20,354 in 2007;
and 22,461 in 2006. In criminal matters, it handed down 8192 decisions in 2009; 8149 decisions in
2008; 8468 decisions in 2007; and 9047 decisions in 2006. On average therefore, the CdC renders
some 30,000 decisions annually. See Cour de cassation, Rapport annuel 2009: Les personnes vulnérables
dans la jurisprudence de la Cour de cassation (La documentation française 2009) 481 and 483.
87 MC Ponthoreau, ‘Le recours à «l’argument de droit comparé» par le juge constitutionnel:
Quelques problèmes théorique et techniques’ in F Mélin-Soucramanien (ed), L’interprétation consti-

tutionnelle (Dalloz 2005) 167.
The Practice 115
of comparative arguments in its decision-making thus come from the ‘dossiers’,

which are accessible on the website of the CC and which sometimes give reference
to foreign constitutional decisions.
Moreover, for a long time, the institutional and procedural settings of the
CC were somewhat hostile to any focused comparative exchange or inspiration.
Although being labelled a ‘court’, the CC is a very peculiar, in its nature rather a
political institution,88 quite distant from the conception of a court, such as the
German Federal Constitutional Court or its Spanish or Central European counter-
parts. The inclusion of the CC into the family of European constitutional courts
could thus be said to be of more doctrinal than really functional origin.89 The CC’s
primary function was, until recently, ex ante abstract review of statutes within the
time limit of one month. This naturally strongly determined the style of its
deliberations and the scope of materials the reporting judge might be able to
assemble within some two weeks or less of drafting a decision.90 In such insti-
tutional settings, it would be rather surprising if the CC were to engage in any
focused comparative constitutional studies.
In the future, it will be interesting to see how the style of work of the CC,
including the likelihood of any comparative considerations, will change in the
framework of the recently introduced new procedure for ex post review of consti-
tutionality (la question prioritaire de constitutionnalité ).91 For a start, the time
available to the CC for the deliberation of a case in this type of procedure is
three months. Additionally, carrying out an ex post review of constitutionality of
already effective laws upon a submission by an ordinary court will bring the CC
perhaps closer to the type and style of work the ‘Germanic’ constitutional courts
predominantly engage in. This may provide an incentive for looking more closely
into their practice and experience.
The up-to-date accounts suggest, however, that even within the institutional
settings previously present within the CC, the CC would occasionally be inspired
by foreign constitutional decisions. In 2004, Justice Dutheillet de Lamothe men-
tioned five instances from the case law of the CC rendered between 1984 and 2004,
in which the CC had drawn inspiration from foreign non-mandatory sources.92 In
2007, a scholarly study identified three instances of foreign inspiration in the
decisions of the CC spread over a decade, with further instances of potential
88 See generally, eg: Vincent (n 85) 226–38 or AM Le Pourhiet, Droit constitutionnel (2nd edn,
Economica 2008) 441–4.

89 With a distinct contribution by L Favoreu—see, eg: L Favoreu, Le Conseil constitutionnel (7th
edn, PUF 2005) or L Favoreu, Les grandes décisions du Conseil constitutionnel (14th edn, Dalloz 2007).
90 See generally: O Dutheillet de Lamothe, ‘Les méthodes de travail du Conseil constitutionnel’,
online at <http://www.conseil-constitutionnel.fr>.
91 Art 61–1 of the French Constitution, introduced by the constitutional reform of 23 July 2008
and further implemented by the ‘Loi organique no 2009–1523 du 10 décembre 2009 relative
à l’application de l’article 61–1 de la Constitution’. The amendment became operative on 1 March
2010. Further see, eg: D Rousseau (ed), La question prioritaire de constitutionnalité (Lextenso 2010);
B Stirn, ‘QPC—Six mois et déjà un nom’ [2010] La Semaine juridique 1762; C Kleitz, ‘Première
évaluation de la loi organique instituant la QPC’ [2010] Gazette du Palais no 248–50, 9–10.
92 Olivier Dutheillet de Lamothe’s contribution to the ‘Constitutional Court Judges’ Roundtable—
Comparative Constitutionalism in Practice’ (2005) 3 I-CON 550, 553–5.

116 France
methodological inspiration implied.93 Finally, a recently published study analyzing
the by now accessible judicial archives of the CC suggested that in its decision-
making in early 1980s, the CC would consider international and foreign inspir-
ation in its deliberations. However, such references in the judicial files seem to be of
only a subsidiary nature and heavily dependent on the person of the reporting
judge.94
5. An Evaluation: Comparative Analysis as a Liberalizing Exercise?

In the absence of detailed and diachronic studies, it is impossible to state whether
the use of comparative reasoning by the French courts is actually rising or falling.
The overall impression voiced in the French literature is that it is rising.95 However,
this might be just an impression, brought about by two factors. First, recently, the
French judicial world has started gradually ‘opening’, ie more and more back-
ground judicial documents, which were previously only published sporadically or
were not accessible at all, are being put online. This means that for the first time,
the external (academic) world sees more of the internal discourse.96 In the absence
of any further evidence, however, this may not necessarily mean that much has
changed internally, only that the internal just became visible. Second, with the
advent of the ‘judicial dialogues’ debate in the recent years, some might feel the
necessity to join the group of the ‘brave ones’, who do engage in comparative
exchange and who do see the rise of comparative argument in the context of
globalization, sometimes irrespective of whether such a wish corresponds with the
reality.
If one were to assume, however, that there indeed is a rise in the French judicial
use of comparative reasoning, an explanation for such a phenomenon has recently
been offered with respect to the administrative courts by Melleray. He pointed out
that the growing interest of the French administrative judiciary in foreign ideas
might be a sort of liberalizing exercise of the French public sector. French adminis-
trative law, which has traditionally been built around more communitarian and
accordingly more state-centred visions, now needs an ‘update’ in the direction of
economic liberalism and greater protection of individual rights.97
93 F Jacquelot, ‘Le juge constitutionnel et le droit comparé’ [2007] Petites affiches 8.

94 B Mathieu and others (ed), Les grandes déliberations du Conseil constitutionnel (Dalloz 2009)
336–8, quoted from Le Quinio (n 50) 378–9. Interestingly, it appears that the vast majority of this
foreign inspiration in this period was in fact introduced by the then member of the CC, Georges Vedel,
whose words of caution against relying on foreign authority were cited above in n 45.
95 See, eg: F Melleray, ‘L’imitation de modèles étrangers en droit administratif français’ [2004]
AJDA 1224 or L Burgorgue-Larsen, ‘De l’internationalisation du dialogue des juges’ in Le dialogue des
juges: Mélanges en l’honneur du président Bruno Genevois (Dalloz 2009).
96 In 1969, J Rivero could only state that, as far as the actual and real use of comparative arguments
by the French administrative courts is concerned, the judiciary is a ‘black box’ and that the only persons
who could say anything about the actual practice were members of the CdE (Rivero (n 66) 207).
97 F Melleray, ‘L’imitation de modèles étrangers en droit administratif français’ [2004] AJDA 1224,
1228–9.
An Evaluation: Comparative Analysis as a Liberalizing Exercise? 117
Melleray also distinguished three periods with different approaches to compara-

tive argument in the development of the French administrative law: the period of
justification, the period of satisfaction, and the period of doubts.98 In the period
of justification, the role of comparative reasoning was to demonstrate the originality
of the French administrative law. Scholarly recourse to foreign solutions in this
period, which lasted from the 19th century until the Second World War, was there
to describe, explain, and justify French theories, but not to provide any new ideas
for the reform of the French administrative law. In the period of satisfaction, which
lasted from 1950s until the end of the 20th century, the French comparative works
regularly arrived at the conclusion of the superiority of the French model. Melleray,
in accordance with Rivero, calls this ‘une autosatisfaction naïve’.99 With the turn of
the Millennium, however, doubts came: the French administrative law still con-
tinues to inspire some countries. These would, however, typically be just the former
French colonies. Even the CdE has recognized in somewhat diplomatic fashion that
its influence has declined.100 Eventually, the French social and economic model
itself, which is in a way very strongly connected with the French administration and
administrative law, would be called into question by various international reports
and surveys.101 Melleray thus concluded that in such circumstances, the role of
comparative arguments in France changed accordingly: from the tool of celebration
of the superiority of French law to the instrument of its contestation.102
The developments in the area of French civil law are not very different from
those in administrative law. The recent celebrations of the 200 years of the Code
civil gave plenty of academic opportunity to reflect on the issue of the influence of
this codification and the French case law and legal scholarship in other countries of
the world.103 Although the conclusions concerning the on-going influence of Code
civil in other legal systems are put in very diplomatic terms, it is clear that the days
in which the Code Napoléon was an export article have passed.104 Thus, also in the
area of private law, the French legal system might be turning, as far as comparative
exchanges are concerned, from a donor system into (also) a recipient one.
98 F Melleray (ed), L’argument de droit comparé en droit administratif français (Bruylant 2007)
16–22.
99 Melleray (n 98) 18.
100 See the report L’influence internationale du droit français (La documentation française 2001).
101 Melleray mentions the French national ‘psychodrama’ following the release of the 2004 ‘Doing
Business’ report by the World Bank, which came out as critical towards the French model—Melleray
(n 98) 20.
102 Melleray (n 98) 21.
103 An instructive study is a comparison of the style and the tone of the two jubilee books and
especially of part three in both books dealing with the foreign influence of the Code civil. See: Le Code
civil 1804–1904: Livre du centenaire (Artur Rousseau 1904) and Le Code civil 1804–2004: Livre du
Bicentenaire (Dalloz and LexisNexis Litec 2004).
104 X Blanc-Jouvan, ‘L’influence du Code civil sur les codifications étrangères récentes’ in Le Code
civil 1804–2004 (n 103). See also the various country reports in the third part of the Livre du
Bicentenaire. See also D Fairgrieve (ed), The Influence of the French Civil Code on the Common Law
and Beyond (BIICL 2007) and JF Dunand and B Winiger (eds), Le Code civil français dans le droit
européen (Bruylant 2005).
118 France
It appears that there is a greater use of comparative inspiration before the CdE
than before the CdC in civil matters. Such a proposition, if true, could be explained
by the historical development of both areas of law. The French civil law was, from
its new post-revolutionary beginnings, codified. It was therefore in the area of civil
law, in particular, that the classical exegetic technique developed. The French
administrative law has, however, evolved along different lines: in the absence of
any codification of administrative law and with only occasional legislative activity in
this area, the development of the body of administrative law and especially judicial
administrative review was the task of the CdE. The role of its judges, perhaps also
due to their different professional background and self-image, was thus more
creative and active.105
France is an example of a system where the argument out of comparative law is
used primarily to boost internal discourse. The recourse to a comparative argument
by the avocat général or rapporteur public and certainly by a judge in deliberations is
there to convince the court and fellow judges and to provide for the internal
dynamic in the development of the law. However, in view of the gradual opening
of the internal judicial world to the public, the reference to a foreign solution might
also serve other purposes. In the future therefore, the bifurcation might no longer
be that radical. This in turn might influence the tendency to invoke foreign models
in the judicial forum as well as the overall citation style.
Still, it seems that the use of comparative reasoning by the French courts is in
aggregate very low. It would be nonetheless mistaken to scorn the French courts for
too little judicial use of foreign law. One has to be aware of the legislative/judicial
balance and the internal context of the legal system. For political reasons dating
back to the Revolution, the French judiciary has shown deference to the legislature.
At the same time, there has been a solid tradition in legislative comparisons106 in
France and, despite some critical voices,107 arguably also academic comparisons.
The traditional self-image of the judge, on the other hand, is, certainly on the
surface, more of a passive recipient. The strength of this tradition and its acceptance
may also be underlined by the fact that even the progressive and critical voices of
the turn of the 20th century, such as those of Gény or Saleilles, discussed earlier in
the chapter,108 never foresaw that judges would directly engage with anything
foreign by themselves. It was always the legislator or the scholarship which stood,
at least in the official portraits, at the centre of legal change.
The same balance is also present in the area of comparative reasoning. Foreign
inspiration is never openly cited in a French judicial decision. This by itself,
however, does not mean that it is non-existent. To criticize the French judges for
105 See generally: R Latournerie, ‘Essay sur les méthodes juridictionnelles du Conseil d’Etat’ in Le
Conseil d’Etat: Livre jubilaire (Sirey 1949) or Y Gaudemet, Les méthodes du juge administratif (LGDJ
1972).
106 For the account of ‘glorious’ days, see the contributions by M Ancel and R Drago in Livre du
centenaire de la Société de législation comparée (LGDJ 1969) 3–24 and 25–50.

107 See, more recently, eg: O Moréteau, ‘Ne tirez pas sur le comparatiste’ (2005) 7 Recueil Dalloz
452.
108 Text to nn 24–31.
An Evaluation: Comparative Analysis as a Liberalizing Exercise? 119
not directly engaging in the international ‘judicial dialogue’ in the same way (and,
implicitly, also in the same style) as their English or US counterparts merely
demonstrates the ignorance of the genuine internal functioning of the system. It
might even be the case that more legal solutions inspired by a comparative analysis
are adopted within the French legal system than within English law. They only pass
through the legislature and the scholarship, not through judge-made law.
7
Germany
The German legal tradition is relatively open to non-mandatory legal inspiration.

The overall judicial style is ‘tolerant legality’. There is no doubt that the principal
and the most important tools for justifying any judicial decision are the national
constitution and national statutes. At the same time, however, other sources of
legal inspiration, especially legal scholarship, tend to be also extensively quoted.
The additional sources of inspiration are nonetheless generally limited to sources
of national origin. The practice of three of the supreme federal jurisdictions, the
Federal Constitutional Court, the Federal Supreme Court, and the Federal Admin-
istrative Court, discloses only sporadic passing references to foreign laws or
judicial decisions, typically within a larger block of citations of domestic case law
or scholarship. References to foreign solutions serve as an additional supportive
argument.
The limited quantity of non-mandatory uses of foreign law by courts should be,
in the German context, weighed against the relatively rich comparative law schol-
arship and the comparative work carried out by the legislator. Only then can one
obtain a more realistic picture of the degree of comparative exchange which, for
cultural, constitutional, and historical reasons, is not a matter for the courts, but for
law professors and the legislature.
1. A Note on the Structure of German Federal Jurisdictions

The German federal judicial structure is characterized by the existence of six
distinct federal jurisdictions: the Federal Supreme Court (Bundesgerichtshof—
BGH); the Federal Administrative Court (Bundesverwaltungsgericht—BverwG);
the Federal Tax Court (Bundesfinanzhof—BFH); the Federal Social Welfare
Court (Bundessozialgericht—BSG); and the Federal Labour Court (Bundesarbeits-
gericht—BAG). In constitutional terms beyond, but in functional terms above all of
these five, institutionally separate jurisdictions, is the Federal Constitutional Court
(Bundesverfassungsgericht—BverfG).
The federal courts are, with the exception of the BFH,1 always third instance
courts. Access to them is granted only by an extraordinary judicial remedy
1 In tax matters, the first instance courts are the state Finanzgerichte. The BFH decides on a
‘revision’ as the court of second instance; the revision is limited to points of law only. Cf } 115ff of the
Finanzgerichtsordnung vom 6 Oktober 1965 (BGBl. I S. 1477).
A Note on the Structure of German Federal Jurisdictions 121
(Revision, or Berufung) from state appellate courts and limited to points of law. The
constitutional task of the federal courts is to safeguard the unity of the interpret-
ation of federal law and the further development of the federal law.2 Function-wise,
they are thus comparable with supreme jurisdictions in unitary systems.
To an external observer, the system of supreme federal jurisdictions is rather
complex.3 The allocation of competence and cases between the various jurisdictions
depends, as their names suggest, on the subject matter of the issue being litigated.
The BFH and the BSG are specialized administrative jurisdictions. The former
is competent to hear disputes relating to tax, customs, and other fiscal matters,
the latter issues relating to social welfare, benefits, and insurance programmes. The
BAG is competent to decide on all aspects of labour disputes. The BVerwG is the
default court for administrative law. It hears all disputes involving public authorities
which are not assigned to one of the specialized administrative jurisdictions.
Finally, the BGH is the default court for the entire federal legal system. It is the
court of general jurisdiction.
Formally seen, the BVerfG is a specialized and concentrated jurisdiction. It is
called on to exercise review of constitutionality in cases specifically provided for by
the German Constitution, the Grundgesetz (GG).4 In practice, however, the
BVerfG is the genuine supreme jurisdiction for all branches of law. Article 93 (1)
4a GG gives the BVerfG the power to hear individual constitutional complaints,
which can be filed by individuals who claims that their fundamental rights have
been infringed by an act or omission of the public power. As the federal jurisdic-
tions are also a part of the public power, the BVerfG is competent to hear consti-
tutional complaints against their final decisions. Through this fiat, any decision of
any of the five supreme federal courts can eventually be reviewed by the BVerfG.5
In this chapter, the study of the practice of the German federal supreme
jurisdictions in their use of comparative arguments will be limited to three of the
2 See generally: C Degenhart, ‘Gerichtsorganisation’ in J Isensee and P Kirchhof (eds), Handbuch
des Staatsrecht der Bundesrepublik Deutschland: Band V (3rd edn, Müller 2007) 735ff. For an
introduction in English, see eg: PL Murray and R Stürmer, German Civil Justice (Carolina Academic
Press 2004) 37–84.
3 The roots of such a complex system go back well before the drafting of the Grundgesetz in 1949 to
German unification in 1870s. Although the Reich eventually created one supreme jurisdiction (Reichs-
gericht) for the new German state in 1877, a number of specialized jurisdictions always co-existed
alongside the Reichsgericht—see, eg: K Stern, Das Staatsrecht der Bundesrepublik Deutschland: Band II
(CH Beck 1980) 380–98 or ER Huber, Deutsche Verfassungsgeschichte seit 1789 (Kohlhammer 1970–
1981) Band III (973–87 for the structure of federal courts in the Bismarck period) and Band VI (525–
77 for the Weimar Republic).
4 Art 93 (1) GG, as further implemented by the Law on the Federal Constitutional Court
[Bundesverfassungsgerichtsgesetz in der Fassung der Bekanntmachung vom 11 August 1993 (BGBl.

I S. 1473)].
5 On average, about 96 per cent of the docket of the BVerfG are constitutional complaints against
last instance judicial decisions, originating either from the federal or state last instance courts. The
statistical data concerning the judicial work of the BVerfG accessible online (at <http://www.bverfg.
de>, section ‘Jahresstatistik 2009’) reveal that in 2009, 97 per cent of cases disposed of by the BVerfG
were constitutional complaints against last instance judicial decisions; in 2008, the same figure was 99
per cent; in 2007, it was 93 per cent.
122 Germany
six supreme jurisdictions: the Bundesverfassungsgericht, the Bundesgerichtshof, and
the Bundesverwaltungsgericht. The reasons for choosing these three jurisdictions are
twofold. First, within the framework explained above, these are the default juris-
dictions for the key areas of German law: constitutional, general (civil, commercial,
and criminal), and administrative. Second, it is these three courts which appear to
be at least somewhat open, in descending order, to comparative reasoning. The
greatest openness is demonstrated by the BVerfG, the least by the BVerwG, with
the BGH in civil matters finding itself somewhere in the middle. Any trace of open
comparative inspiration in the other three supreme federal jurisdictions is, however,
as good as non-existent.
2. The Doctrine
The elaborate German scholarship generally agrees that comparison of laws should
play a role in the process of domestic application of the German laws. There is,
however, no agreement as to the precise doctrinal box that comparative reasoning
in national adjudication should fit into. At least two levels of the German scholarly
debates on comparative law are relevant for the purpose of this study: first, there is
the specific debate on the use of comparative reasoning in the process of judicial
application of the laws taking place within the comparative law scholarship.
Secondly, the same question may occasionally be discussed within the general
legal theory debate. The first kind of debate is carried out predominantly by
comparative lawyers themselves, the second one by scholars working in the field
of legal theory or, more precisely, the authors writing the standard, mainstream
works of positive law (Rechtsdogmatik).6
The two levels of debate do not always interlink with each other. Comparative
lawyers arguing for a greater use of comparative methodology by the courts often
fail to relate their suggestions to the general framework of standing legal theories,
thus leaving their claims that ‘there should be more comparisons’ somewhat
hanging in the air. General theoretical works on interpretation, on the other
hand, are typically inward oriented, neglecting comparative arguments and failing
to incorporate them into their theoretical framework, in spite of having empirical
evidence that the German courts sometimes make use of them.
Both levels of discourse will now be outlined, starting with the specifically
comparative law debate and then relating it to the broader picture of the national
Rechtsdogmatik concerning methods of legal interpretation in general.
6 Without there being, however, any negative connotation in the use of this notion of Dogmatik. It
is recognized, also by comparative lawyers, that a solid Rechtsdogmatik in the meaning of basic
methodological guidebook is essential for any lawyer—see, eg: H Dölle, ‘Rechtsdogmatik und
Rechtsvergleichung’ (1970) 34 RabelsZ 403.
The Doctrine 123
2.1. The Comparative Law Debate

Debates on comparative law in the process of adjudication go way back in German
scholarship, to times well before the Second Word War or even before the First.7
First suggestions that comparative arguments can be used in the interpretation of
purely domestic laws go back even before 1900.8 The genuine launch of modern
comparative studies in Germany is nonetheless associated with the time after the
First World War. The retrospective explanation of the early hour of the birth of
comparative law was the lost war. The understanding, explanation, and application
of the British/French drafted Versailles Treaties and the number of surrounding
legal activities (reparation tribunals, mixed arbitrations, etc) forced the German
scholarship to engage with other legal systems. The chief reason was very pragmatic:
in order to be successful in the process of international adjudication, one needed to
know the others, their legal systems, their ways of thinking and reasoning.9 The
founding component of modern German comparative legal studies thus became a
state interest, financed and supported by the German state and German industry,
with a distinct ethos of comparative studies being a state-run enterprise.10
a) Zweigert’s Swiss Inspiration

In 1949, the debate on the utility of comparative arguments for the judicial
interpretation of law was relaunched by Konrad Zweigert. In his professorial
Antrittsvorlesung in Tübingen, he announced that the comparison of laws should
become a ‘universal method of interpretation’.11 He claimed that the traditional use
of comparisons for legislative work was not enough. Legal comparison should
become a standard method for any interpretation of laws, be it in judicial applica-
tion of the law or in the works of legal scholarship.
Zweigert’s claims were normative. He recognized that the German pre-war
practice of such use of comparative reasoning was not strong. There was some
experience in the legislative use of comparisons. The impact of comparative law on
legal science and especially legal practice was, however, minimal.12 The legislative
7 See generally: E Rabel, ‘Das Institut für Rechtsvergleichung an der Universität München’ in
Ernst Rabel Gesammelte Aufsätze: Band III (Mohr Siebeck 1967) 25ff; H Dölle, ‘Der Beitrag der
Rechtsvergleichung zum deutschen Recht’ in Hundert Jahre deutsches Rechtsleben—Festschrift zum
Hundertjährigen Bestehen des Deutschen Juristentages: Band II (Müller 1960) 19–21; B Aubin, ‘Die
rechtsvergleichende Interpretation autonom-internen Rechts in der deutschen Rechtsprechung’ (1970)
34 RabelsZ 458, 458–9.
8 A singular work in this respect is J Kohler, ‘Über die Interpretation von Gesetzen’ (1886) XIII
Zeitschrift für das Privatrecht und öffentliches Recht der Gegenwart 1, who suggested (at 37ff )
comparative studies of the laws of Culturstaaten as a tool for discerning the practical aims of legal
regulation and the genuine life of legal institutions.
9 Dölle (n 7) 20 or K Zweigert and H Kötz, Einführung in die Rechtsvergleichung (3rd edn, Mohr
Siebeck 1996) 58ff.

10 E Rabel, ‘Aufgabe und Notwendigkeit der Rechtsvergleichung’ in Rabel (n 7).
11 K Zweigert, ‘Rechtsvergleichung als universale Interpretationsmethode’ (1949) 15 Zeitschrift für
Ausländisches und Internationales Privatrecht (later RabelsZ) 5.

12 Zweigert (n 11) 8.
124 Germany
tradition of comparisons nonetheless provided Zweigert with a justification as to
why judges should use comparative reasoning. He referred to Article 1 of the Swiss
Civil Code, which commands the Swiss judge to close gaps in the Code as if he were
the national legislator. If, as Zweigert continued, the modern national legislator is,
at best, a comparative eclecticist (rechtsvergleichender Eklektiker), then, the national
judge, while closing the gaps in a code and hence acting as the legislator, should also
resort to the same methodology, ie the comparison.13
The beauty and the force of this justification lies in its apparent compelling
simplicity. In a syllogism-like fashion, it is stated that first, a national legislator uses
comparative law and is no doubt entitled to do so. Second, when closing gaps in
law, judges behave as legislators. Hence, judges too should use comparative
reasoning.
One may of course challenge this justification on various grounds. No one in the
German scholarship after Zweigert was, however, able to offer such a simple yet
compelling explanation as to why judges should use comparative arguments while
still safely remaining within the positivistic box of their national legal system.
Zweigert would claim that comparison of law can offer valuable ideas where
there is a shortage of them in the national legal system. The foreign is (sein) has,
however, no overriding impact on a clear national ought (sollen). In other words,
foreign models are there to help to fill gaps in cases where there is no national sollen
or when it is unclear what the national sollen actually is.14 A comparison can,
however, not alter a clear statement of the domestic norm. The judicial comparison
fulfils the role of a significant control15 and reassurance for the national judge that
the solution she reached within the unclear sollen is more broadly shared and
acceptable.
The suggestions made by Zweigert have considerably shaped the German
doctrinal debate in the following decades. The clear political context of Zweigert’s
call can hardly be overlooked. Comparisons with the Western legal systems as a self-
imposed control function in any interpretation of German domestic laws was a
theory which fitted well into the immediate post-War Germany. One is very far
from suggesting any particular aim on the side of Zweigert beyond his own
intellectual conviction of the benefit of comparative reasoning for the interpretation
of national laws. It is, however, still necessary to note the context in which such a
broad and universal call for the use of comparative reasoning in judicial application
of the laws was made and, to a considerable extent, well received. In the post-war
German context, with occupying forces still in the country and the constitutional as
well as legal reconstruction of Germany going on under the direct supervision of the
Allied Forces,16 the universal methodology of comparison with their legal orders
13 Zweigert (n 11) 8–9.

14 Zweigert (n 11) 20.
15 Zweigert (n 11) 17 (wesentliche Kontrollfunktion).
16 See generally: B Pieroth, ‘Amerikanischer Verfassungsexport nach Deutschland’ [1989] NJW
1333. Generally on comparative inspiration in periods of transitions, see further ch 14, section 2.
The Doctrine 125
could provide for a strong source of external as well as internal legitimacy of the new
legal order and its scholarship.
b) The Orientation and the Control Function

Zweigert’s article opened the post-War debate on the use of comparative arguments
by courts. It set an additional aim for comparative law, not previously mentioned in
the standard works on the subject: to provide guidance for the interpretation of the
‘autonomous-internal’17 German law, ie for cases of non-mandatory uses of foreign
law.
All the subsequent works typically took a position on Zweigert’s seminal article.
Most of them approved of his justification of judicial use of comparative
reasoning.18 The occasionally critical voices raised two principal objections: first,
it was somewhat peculiar to justify the use of comparative reasoning in German
courts, ie the practice of referring to foreign law, by yet another reference to foreign
law, namely the Swiss ZGB.19 Secondly, it was also suggested that the latitude the
Swiss ZGB expressly gives to Swiss judges by inviting them to behave as legislators
was actually quite foreign to the German legal tradition.20
It is true that the overall drafting style of the Swiss ZGB and the German BGB
and, correspondingly, the manoeuvring space left to judges, differ. The Swiss
codification is a relatively short one, focused on general principles, whereas the
German code is a detailed codification. Correspondingly, the Swiss code leaves
more leeway, implied as well as expressly laid down in Article 1, to the judicial
creation of law. The German code is much more restrictive and provides no express
grounding for the judicial creation of law.21
Additionally, the German pre-BGB tradition did also not allow for any judicial
quasi-legislative adventures, quite to the contrary. The introductory paragraphs
(}} 46–58 entitled ‘Auslegung von Gesetzen’) of the earliest German codification,
Allgemeines Landrecht für die Preußischen Staaten of 5 February 1794, actually
prohibited the judge from going beyond the intention of the legislator expressed in
the law itself. In case of doubts, judges should refer the question to a legislative
committee and await its decision,22 but they should not behave as legislators.
These objections are no doubt correct on the level of a historical legal argument.
They do not, however, undermine the general normative value of Zweigert’s
17 Terminology introduced in Aubin (n 7).

18 See, eg: Dölle (n 7); Aubin (n 7); R Schulze, ‘Vergleichende Gesetzesauslegung und Rechtsan-
gleichung’ (1997) 38 Zeitschrift für Rechtsvergleichung 183; H Kötz, ‘Der Bundesgerichtshof und die
Rechtsvergleichung’ in A Heldrich and KJ Hopt (eds), 50 Jahre Bundesgerichtshof: Band II (CH Beck
2000).
19 U Drobnig, ‘Rechtsvergleichung in der deutschen Rechtsprechung’ (1986) 50 RabelsZ 610,
611.
20 Drobnig (n 19); also LJ Constantinesco, Rechtsvergleichung: Band II (Carl Heymanns 1972) 376.
21 K Siehr, ‘Die Zeitschrift für Schweizerisches Recht und das schweizerische Privatrecht in der
deutschen Rechtspraxis’ (1981) 100 Zeitschrift für Schweizerisches Recht 51, 53–4.
22 } 47 of the Einleitung to the Allgemeines Landrecht für die Preußischen Staaten. The code
allowed only for internal analogy within the codification (} 49 Einleitung), but not for going beyond it.
126 Germany
suggestion when seeking to provide future justification of the use of comparative
arguments by courts. Additionally, even the above mentioned critical voices
accepted that comparative arguments fulfil the purpose of ‘orientation and control’
(Orientierungs- und Kontrollfunktion)23 in the area of further development of the
law.
c) The Doctrinal Advent of Public Law Comparisons

The examples mentioned so far are all drawn from the area of the traditional
private-law oriented comparative legal scholarship, which dominated the German
scholarship before and after the Second World War. The 1960s and 1970s also
brought about, however, the gradual awakening of debates of the use of compara-
tive law in public law, especially constitutional law. After the first wave of contri-
butions, which sought to justify generally that there is such a thing as comparison in
public law,24 more critical reflections appeared, suggesting that Zweigert’s justifi-
cation may only be of limited use in the area of public law.25
The interest in comparative study of public, especially constitutional law, has
nonetheless kept rising in German scholarship over the last twenty years or so.
A field of study, which not so long ago was seeking to justify its mere existence, is
now on equal terms with classic German private law comparative scholarship.26
This development may be due to various factors. Three may be suggested.
First, as will be examined in detail further in this chapter, in Germany, it is
actually the Bundesverfassungsgericht which, in practice, makes the greatest use of
comparative arguments in its judicial decisions-making. It thus provides perhaps
more incentives for the study of this phenomenon in the domain of constitutional
law.
Secondly, after the fall of the Iron Curtain in 1989, the Federal Republic of
Germany became the chief law exporter into Central and Eastern European
countries, again mostly in the area of constitutional and sometimes also adminis-
trative law. As a consequence, there has been a revival and diversification of the
comparisons in constitutional law and public law generally. A number of compara-
tive studies have been carried out, looking into the success or failure of the various
legal exportations and in turn looking back at the German model. The German
23 Constantinesco (n 20) 373–8.

24 For such earlier debates, see, eg the various field-defining contributions in (1964) 24 Zeitschrift
für Ausländisches Öffentliches Recht und Völkerrecht 391–452.
25 JM Mössner, ‘Rechtsvergleichung und Verfassungsrechtsprechung’ (1974) 99 AöR 193, 207–8.
26 Amongst the legions of the recent works, see eg: C Starck, ‘Rechtsvergleichung im öffentlichen
Recht’ (1997) 52 JZ 1021; H Krüger, ‘Eigenart, Methode und Funktion der Rechtsvergleichung im
öffentlichen Recht’ in B Ziemske (ed), Staatsphilosophie und Rechtspolitik: Festschrift für Martin Kriele
zum 65. Geburtstag (CH Beck 1997); R Grote, ‘Rechtskreise im öffentlichen Recht’ (2001) 126 AöR
10; L Adamovich, ‘Rechtsvergleichung im Verfassungsrecht’ in S Hammer and others (eds), Demo-
kratie und sozialer Rechtsstaat in Europa: Festschrift für Theo Öhlinger (Wien Universitätsverlag 2004);
R Bernhardt, ‘Betrachtungen zur Rechtsvergleichung im öffentlichen Recht’ in R Grote (ed), Die
Ordnung der Freiheit: Festschrift für Christian Starck zum siebzigsten Geburtstag (Mohr Siebeck 2007);
AM Cárdenas Paulsen, Über die Rechtsvergleichung in der Rechtsprechung des Bundesverfassungsgerichts
(Dr Kovač 2009).
The Doctrine 127
studies in comparative law became accordingly more diverse: they would not be just
limited to traditional Western comparisons (Germany and US or Germany and
France etc), but would also include more exotic Eastern destinations.
Thirdly, a relatively outward-looking academic system such as the modern
German one has picked up on the recent US driven trend of comparative constitu-
tionalism, which would be brought back into Germany also by the considerable
number of German lawyers studying for their typically postgraduate degrees in the
USA.
2.2. The General Rechtsdogmatik

The evolution of modern German theories of statutory interpretation could per-
haps most aptly be summarized as a strong and constant belief that there are
objective and rational canons of legal interpretation. They just need to be dis-
covered by the legal science, embodied by the legal scholarship. There is objective
reason of the law independent of the judge or any other interpreter. What has been
changing over time, however, has been the conviction as to what is the source of
such a reason. It is clear that any theory of modern legal interpretation, provided
that it is not an extremely critical theory which would seek to deny any potential for
objectification of legal reasoning, seeks to be formal and rational and thus object-
ive.27 Arguably, however, in none of the other legal systems studied in this work is
this modernist drive for formal rationality28 so strong, so often invoked, and
leading to the elaboration of a number of detailed, systemic theories of legal
interpretation.
The changes in the mainstream approaches to legal reasoning and to where the
reason lies then in turn influenced the doctrinal openness of the legal system to
comparative arguments. In times when rationality and interpretative sources were
believed to be exclusively internal to the German legal culture, associated typically
with the national historical legislator, there was little scope for comparative analysis.
Once, however, the historical legislative intent and the current interpretation of
statute became dissociated, a space for other sources of inspiration opened, includ-
ing the comparative ones.
a) Savigny and the Traditional Canons

The foundations of modern methods of interpretation in the Germanic legal space
were set out by FC von Savigny. His, by now classic, canons of interpretation
27 In the sense of Weberian formal rationality as the foundation of modern society and its system of
law—M Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Sociologie (5th edn, Mohr
Siebeck 1972) 496ff.
28 For instance, Robert Alexy claimed that the requirement of rationality ought to be extended to all
cases of judicial reasoning. Without rationality, there is no legal discourse at all. See R Alexy, Theorie
der juristischen Argumentation (Suhrkamp 1983) 15.
128 Germany
included the grammatical, logical, systematic, and historical arguments.29 The
purpose of the interpretation was to reconstruct the original ratio legis (Grund des
Gesetzes).30 This would be carried out by the interpreter putting himself into the
shoes of the legislator and mentally rebuilding the law in the same way legislator
would have done it,31 while using the four elements of interpretation suggested by
Savigny.
There are two aspects of Savigny’s approach which deserve to be highlighted for
our purposes. First, in contemporary doctrinal terminology, Savigny’s approach
could be labelled as a type of objective originalism. He sought to reconstruct the
will of the legislator as it stood at the moment of the adoption of the law (therefore
originalist or historical) and for that reconstruction, he would rely simply on the
will of the legislator as objectively expressed in the law itself, potentially also
supplemented by other, but still objective sources of the period when the legislation
was adopted.32 Subjective, psychological motives of the legislator not expressed in
the law itself were, however, outside the scope of his interest.
Second, Savigny’s vision of legal interpretation was relatively open. He distin-
guished between interpretation (Auslegung) and further development of the law
(Rechtsfortbildung). The judge would be constitutionally empowered to carry out
only the former, not the latter. The process of interpretation was, however, very
broad in his view. It included also the judicial fleshing out of imperfect laws
(mangelhafte Gesetze), such as, for instance, laws containing vague legal notions or
incorrect legal notions.33 The key distinction in this respect was one between a
statutory rule (Rechtssatz) and a legal construct (Rechtsinstitut). A missing statutory
rule could be supplemented by analogy with an overreaching legal construct; if
there was for instance no specific provision providing for the particular situation, an
internal analogy within the legal construct or the statute itself would allow for
creating a new rule.34 Within this sort of interpretation, the judge was bound by
internal value choices already contained in the law itself. The judge would, at the
same time, be relatively free in fleshing out the imperfect laws.
It is evident that comparative reasoning may have only limited significance for
the reconstruction of the intention of the historical legislator. However, to scorn
Savigny and the historical school founded by him for creating a major obstacle to
the evolution of comparative law in Germanys is perhaps not entirely justified.35
First, Savigny’s approach was relatively flexible, giving the judges leeway in supple-
menting missing or deficient rules. It was only later, with the new German
29 FC von Savigny, System des heutigen Römischen Rechts (2. Neudruck der Ausgabe Berlin 1840,
Scientia Verlag 1981) 206–45.

30 Savigny (n 29) } 34 (at 216ff ).
31 Savigny (n 29) } 33 (at 213).
32 Savigny (n 29) } 38 (at 241).
33 Savigny (n 29) } 35 (at 222ff ).
34 Similar division, as well as a number of other elements in Savigny’s work, is not completely new.
In the already mentioned Allgemeines Landrecht für die Preußischen Staaten (n 22), the judges were
authorized to carry out a similar interpretative exercise of internal analogy by the provision of } 49 of
the Einleitung.
35 See, eg: Zweigert and Kötz (n 9) 49.
The Doctrine 129
mainstream approach of the Begriffjurisprudenz, that legal interpretation became an

inward-looking parade of a self-sufficient system of notions.36 Second, one needs to
be mindful that Savigny’s theoretical framework was designed for the interpretation
of Roman law, which was, at the beginning of 19th century, still the only unifying
legal system in the German legal space. The stress on the objective historical
intention of the original legislator was in fact a tool for reconstructing the authentic
meaning of Roman law (ie Justinian), thus excluding the mass of medieval inter-
polations carried out by various schools.37 Finally, interpreting Roman law in
Savigny’s time was by its nature a non-national and comparative enterprise, as it
would be shared with a number of other European jurisdictions still based on
Roman law.
The second half of the 19th century in Germany was characterized by the advent
of a school of thought later labelled as the jurisprudence of concepts (Begriff-
jurisprudenz). Stress was put on the building of internal logic, notions, and logical
subordination. Law was seen as an inward-oriented and dogmatically seamless
complete system. Any legal question could be subordinated to a corresponding
abstract legal notion and, should there be none, a new one would be created
deductively from a more abstract notion.38 The elaboration of a system of notions
helped to bring about the national legal codifications of the second half of the 19th
century and was in turn to be fuelled by them. In a way, the approach was
appropriate for legislative activity. The weakness of such a system lay in the area
of the application of the law, in which the patters of simple logical subordinations
of legal notions could hardly provide satisfactory answers.39
Within such a nationally based complete pyramid of norms grounded in the
national legal spirit, comparative reasoning would be of little use. Even though
some pioneering comparative studies were effectuated in this period, this did not
happen frequently.40 As in the case of many other Continental countries in the
19th century, with the advent of codifications, the predominant legal approach
became one of exegesis of the new codes.41 The additional German aspect was that
most of these codifications would be the first all-German codifications, unifying
various systems of previous regional laws. Comparative potential was thus predom-
inantly spent on intra-German comparisons carried out prior to the adoption of the
respective codification in the process of legislating.42
36 See also: H Coing, ‘Savignys rechtspolitische und methodische Anschauungen in ihrer Bedeu-
tung für die gegenwärtige deutsche Rechtswissenschaft’ in H Coing, Gesammelte Aufsätze zu Rechts-
geschichte, Rechtsphilosophie und Zivilrecht: 1947–1975 (Klostermann 1982).
37 Savigny (n 29) }} 38–41 (240–62).
38 See generally: F Bydlinski, Juristische Methodenlehre und Rechtsbegriff (2nd edn, Springer 1991)
109–13.
39 Bydlinski (n 38) 112.
40 Examples are provided by LJ Constantinesco, Rechtsvergleichung: Band I (Carl Heymanns 1971)
122–59.
41 Including the French exegetic tradition, outlined in ch 6, section 2.1.
42 See, eg: Schulze (n 18) 193 or Starck (n 26) 1021–2. Generally see also: M Stolleis, Nationalität
und Internationalität: Rechtsvergleichung im öffentlichen Recht des 19. Jahrhunderts (Steiner 1998).
130 Germany
b) The Free Law Critique
Starting as early as the beginning of the 20th century, the notion-based mainstream
approaches were challenged by various critical theories. Their common denomin-
ator was to question the rationalistic, notion-based, and systemic vision of a
seamless legal order, in which the judge is asked to do nothing else but to subsume
the facts under the appropriate ex ante fixed statutory rule (Rechtssatz).43
The critique of Eugen Ehrlich provides a good example in this respect. In his
Freie Rechtsfindung und freie Rechtswissenschaft,44 Ehrlich challenged the vision that
a legal system is seamless system of abstract statutory rules. Any interpretation of
the law is necessarily a creative enterprise, in which is mirrored the individuality of
the interpreter. Therefore, instead of dogmatically creating more and more elabor-
ate ‘objective’ notions which the judge is then supposed to ‘objectively’ apply, a
legal system should rather care whom it appoints to the judicial office, as that is, in
reality, the only way to control judicial output.45
The interpretation of the law itself is a creative and dynamic enterprise which
cannot include just the reading of the statutory rule and the reconstruction of the
intention of the legislator. Ehrlich’s challenge had two key elements: first, the
genuine source of judicial decision-making can never be reduced to mere abstract
statutory rules and doctrinal notions. Secondly, what the judge is supposed to
reconstruct is not the original intention of the historical legislator, but the current,
genuine life of the legal norm in society. The first element is about sources of the
law and their broadening; the second about suggesting more a dynamic approach to
legal interpretation, seeking to accommodate legal change which was not there at
the moment when the legislator passed her decisions.46
Within such an approach to legal reasoning, comparative analysis becomes very
beneficial. Ehrlich openly regretted that German law became nationalized through
the veneration of the intention of the national legislator, pointing out the retreat
from Savigny’s original international outlook.47 Furthermore, he also regretted that
within such doctrinal settings, there cannot be any direct exchange of Juristenrecht,
ie judicial decisions, between systems. He approvingly referred to the possibility of
such exchange between non-closed systems of the English and American law.48
In sum, Ehrlich called for a differentiated approach to judicial reasoning by, first,
dogmatically reassessing how the law is genuinely discerned and, secondly, by
opening up to other factual sources of law, also including not strictly national
43 See generally: Bydlinski (n 38) 140–75.

44 Originally published in Leipzig in 1903, reprinted by Scientia Verlag in 1973 (further references
are made to the 1973 reprinted version).
45 Ehrlich (n 44) 28–32.
46 Ehrlich (n 44) 34.
47 Ehrlich (n 44) 18. The shift happened after Savigny, when the intention of the Roman classical
legislator was replaced by the intention of the current German legislator. Whereas the identification of
the will of the Roman legislator was by definition a non-national enterprise, which would be carried out
jointly with other European jurisdictions still applying Roman law, this ceased to be the case after the
advent of German national codifications following the unification of Germany in 1871.
48 Ehrlich (n 44) 15–16.
The Doctrine 131
sources. Arguing sociologically,49 genuine law is something quite different from a

complete abstract set of orders of the national legislator to its servants.
c) The Current Streams: The Appreciation of the Legislative Valuations

The more current mainstream theories of legal interpretation are referred to as
jurisprudence of values (Wertungsjurisprudenz).50 Building on the previous think-
ing and also the critical voices, it considerably enlarges the scope of the judicial
mandate. The claim is no longer that the judge is strictly bound by any statutory
rule, which is always embedded in a systemically complete web of legal notions.
The argument becomes much more nuanced: the judge is not necessarily bound by
mere black-letter law, but by the legal valuations (gesetzliche Wertungen), expressed
by the legislator. Furthermore, the task of the interpreter is not to ascertain the
mere intention of the historical legislator, but the immanent and inherent values in
the law.51
The functioning of legal valuations can be best explained through the distinction
this theoretical framework makes between two categories: the (mere) interpretation
of the law (Auslegung) and the further development of the law (Rechtsfortbildung).
The further development of the law can be further split into ‘the further develop-
ment of the law which remains within the statute’ and ‘the further development of
the law beyond the statute’, but still within the legal system as such. An influential
work of Carl Larenz52 distinguished the following three categories:
(i) interpretation (Auslegung);
(ii) further development of the law within the statute (gesetzesimmanente
Rechtsfortbildung); and
(iii) further development of the law beyond the statute but within the legal
system (Rechtsfortbildung über den Plan des Gesetzes hinaus or gesetzüberstei-
gende Rechtsfortbildung).
The underlying assumption for all the three categories is that the judge is bound by
the valuations made by the national legislator. The internal differentiation consists
in how much the judge is bound, or rather, how clear the valuation is.
Closest to the values inherent in the statute is mere interpretation. Modern
German techniques of legal interpretation are, however, very far from any mechan-
ical subordination of facts under a statutory rule. They include a variety of potential
arguments, including literal, systemic, logical, historical, and teleological types of
49 See E Ehrlich, Soziologie und Jurisprudenz (Gutenberg 1906).

50 The contemporary classics include, for instance, K Larenz and CW Canaris, Methodenlehre der
Rechtswissenschaft (3rd edn, Springer 1995); R Zippelius, Juristische Methodenlehre (10th edn, CH Beck
2006); Bydlinski (n 38).
51 See, eg: Bydlinski (n 38) 123–39.
52 Larenz and Canaris (n 50) 133–262. Similarly also H Uyterhoeven, Richterliche Rechtsfindung
und Rechtsvergleichung: Eine Vorstudie über die Rechtsvergleichung als Hilfsmittel der richterlichen
Rechtsfindung im Privatrecht (Stämpfli 1959).
132 Germany
arguments,53 but also more specific techniques, such as arguments of constitution-
ally-conform or Euro-conform interpretation.
Still broadly within the valuations made by the statute itself but beyond its text is
further development of the law within the statute. It deals with situations of gaps in
a statute, which can, however, be closed by reference to the general scheme of the
statute and internal analogy. German scholarship has worked out elaborate theories
and taxonomies of the various types of gaps in law and how they are to be closed.
Without wishing to enter into any details on these debates,54 it suffices to highlight
that the common element of all these types of gap closing is that it happens within
the statutory valuations expressed by legislator. These may not be clearly expressed
in the individual case, but they would still be within the overall plan or structure of
the statute.55
Further development of the law beyond the statute crosses the line of the plan of
a statute. It gives a solution to situations which the legislator objectively did not or
could not have conceived of. The legislator could therefore not have adopted any
specific valuation with regard to them. One may argue, as the German legal theory
tirelessly does, whether there actually is, in such a situation, a gap in law. Even in
such situations, the case could be solved by a broader analogy within the legal
system as such, typically in accordance with general principles of law or the general
guiding principles of the national legal system. The key element here, however, is
the original statute: a decision by general analogy would have no foundation in the
text of the statute itself or might even run against it. Larenz and Canaris,56 for
instance, mention several examples of when such practice is justified and even
desired. The two most important for this study are new developments in the
relations governed by the law (Rechtsverkehr) and developments required by legal
and ethical principles, which could even be labelled natural justice.
There is general agreement in German scholarship57 that the categories outlined
above are ideal models. To draw the precise borderline as to when judges are ‘just
interpreting’ and when they are further developing the law (and in which of the two
categories) is frequently determined by what the judges say that they are doing and
not by what they are actually doing. The overreaching idea in elaborating these
53 Larenz and Canaris (n 50) 133–86 or Bydlinski (n 38) 428–71.

54 See generally: CW Canaris, Die Feststellung von Lücken im Gesetz (2nd edn, Duncker &
Humblot 1983).
55 Larenz and Canaris (n 50) 232 use, in this aspect, the notion of ‘planwidrige Unvollständigkeit’,
ie a piece in the statutory structure which is missing contrary to the overall legislative plan. This in turn
presupposes that a reasonable legislator (or, in the German terms, a rational legislator) would have
included such situation within the legislative plan. Examples of such missing pieces in a statute include
a scenario of a badly drafted statute which can be ‘corrected’ in this way or cases in which the legislator
had omitted to include a particular analogical situation or had not applied a particular, logically
necessary exception to a too broad rule etc.
56 Larenz and Canaris (n 50) 232–52.
57 See, eg: S Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent: Band I
(Mohr Siebeck 2001) 142 and the references cited therein. See also: F Müller, ‘Richterrecht—
rechtstheoretisch formuliert’ in Richterliche Rechtsfortbildung: Erscheinungsformen, Auftrag und Gren-
zen: Festschrift der Juristischen Fakultät zur 600-Jahr-Feier der Ruprechts-Karls-Universität Heidelberg
(Müller 1986).
The Doctrine 133
categories is the already mentioned unremitting drive in the German scholarship to

limit the unpredictable and the arbitrary in judicial work by rationalizing and
creating boxes. The aim is to set limits to judicial law-making.58
d) Whose Intent?
There is one last, but crucial aspect of the current valuation approach which needs
to be highlighted. Contrary to the previously sketched views of Savigny, the system
of legal values the judge is called on to reconstruct is not just the valuation of the
legislator, but the valuation of the law itself. The historical intention of the
legislator and the present values of a statute become separate categories.
In general terms, when searching for the values of a statute, the interpreter has
to choose what values or intent to reflect. This may be either the values of the
legislator (subjective values) or the values of the society as such, of which the
legislator is just one component (objective values). Furthermore, the interpreter
needs to choose from which period of time the values are to be distilled: whether
from the past (historical values), ie the moment of the adoption of the statute, or
whether from the present life of the law and society (contemporary values). The
combination of these four elements gives four (ideal) possibilities for the recon-
struction of the valuations of a statute:59
(i) subjective-historical;
(ii) subjective-contemporary;
(iii) objective-historical; and
(iv) objective-contemporary.
A subjective-historical approach is interested in the will of the historical legislator as
it stood at the moment of the adoption of the statute. An objective-historical
approach looks also into the overall temporal societal conditions of the times
when the legislation was adopted. This does not mean that this approach is not
interested in the will of the historical legislator. The will of the historical legislator
is, nonetheless, just one of the historical components to be considered. A subjective-
contemporary approach asks the judges to reconstruct reasonable valuations of the
law as if they were a modern legislator, adopting the statute anew at the relevant
temporal moment for the facts of the case to be decided. Finally, if adhering to
objective-contemporary approach, the judges seek to identity the legal valuations
behind the law as the reflection of generally shared present convictions, thus
constantly and dynamically reinterpreting the law according to the changing
societal and legal circumstances.
58 But see JA Frowein, who pragmatically noted that the ultimate realist test for the judicial further
development of the law and its limits would not be any dogmatic construction, but societal acceptance.
See JA Frowein, ‘Randbemerkung zu den Grenzen des Richterrechts in rechtsvergleichender Betrach-
tung’ in Richterliche Rechtsfortbildung (n 57) 555–65.
59 Vogenauer (n 57) 141 or Uyterhoeven (n 52) 10–15.
134 Germany
The dominant approach in the current German scholarship could be said to be
the objective approach,60 within which greater preference would be given to the
objective-contemporary approach. The original intent of the legislator is used as a
departure point, but certainly not as a controlling argument,61 in the search for
legal valuations of the law itself.
The overall impression one has when reviewing the historical evolution of the
various types of German theories of legal interpretation is, similarly to France, a
considerable loosening of the grip of the legislator, while still trying to maintain the
impression of strict rationality and objectivity of the judicial process. The rational-
ity of the historical legislator was superseded by the rationality of legal notions and
the systemic argument, itself to be later replaced by the rationality of the law itself.
But the effort has always been, at least in mainstream scholarship, to identify
rationality outside of the judges themselves, which would be able to objectively
bind judicial decision-making. However, with the gradual departure from the will
of the historical legislator, the argumentative space is also gradually opening to
other sources of inspiration, including comparative ones.
e) Comparative Reasoning: The Entry Points

Comparative reasoning can be employed within interpretation as well as further
development of the law. Within interpretation (in the meaning of the Auslegung as
opposed to the Rechtsfortbildung), there are two ways in which comparative
reasoning may enter the scene: first, it may be integrated into one of the existing
methods or canons of interpretation. Second, it may be employed for the interpret-
ation of (indeterminate) legal notions (Rechtsbegriffe).
Within the classical methods, some authors have suggested that comparative
considerations can be seen as a type of systematic argument62 or that they form
part of objective teleological considerations63 in order to determine the valuations
of the law. The use of comparative arguments in both types of methods is possible
once the interpreter seeks to identify the statutory valuations in an objective-
contemporary fashion. The occurrence of similar valuations in other legal systems
confirms that the interpretation adopted by the domestic judge ought to be
generally acceptable. The function of such use of comparative argument within
judicial reasoning should be, however, limited to the elimination of improper
solutions and the eventual confirmation of the already selected ones.64
60 Vogenauer (n 57) 142; Uyterhoeven (n 52) 14; Larenz and Canaris (n 50) 137ff; Bydlinski
(n 38) 454ff. See also H Fleischer, ‘Comparative Approaches to the Use of Legislative History in
Statutory Interpretation’ (2012) 60 AJCL 401, 408.
61 Larenz and Canaris (n 50) 139.
62 Vogenauer (n 57) 43.
63 Bydlinski (n 38) 461.
64 Bydlinski (n 38) 461, talks of complementary and backing-up reasoning (ergänzende und
absichernde Argumentation).
Judicial Views 135
Furthermore, comparative reasoning may also be used for the fleshing out of
indeterminate legal notions. Bydlinski65 suggested that once a judge moves beyond
the vision of the national legal system as a sealed off pyramid of legal norms
subjected only to the accidental will of the national legislator, but sees the legal
system and the legal notions contained therein as a tool for realizing universal values
of fairness, justice, and legal certainty, then the comparative and functional study of
foreign solutions is of value for the interpretation of domestic legal notions.
Comparative analysis has an even greater role in the area of judicial further
development of the law, which goes beyond the plan of the statute, at least judged
by the pronouncements of legal scholarship. Comparative analysis is there to
provide inspiration and a check with respect to conceivable solutions. There is,
however, also a general agreement that the inspiration must still operate within the
overall legal framework of the general principles and constitutional foundations of
the German legal order and that, even here, the role of comparative analysis is
corroborative only. Key substantive arguments for the judicial further development
of the law must be presented in terms of valuations of the national legal order.66
The overall emerging picture of mainstream German scholarship67 with respect
to the use of comparative arguments is one of ‘tolerant legality’. The German
system finds itself in the middle between the axiomatically open English one and
the, at least formally, axiomatically closed French one. There is no doubt that the
main playground for any justification of a judicial decision is the national statute
and the national constitution. At the same time, the system is open and allows for
the entry of comparative arguments at various points in the process of interpret-
ation. The role of comparative analysis is nonetheless, as the mainstream scholar-
ship generating the national doctrine suggests, limited to just secondary and
supportive arguments of reassurance, confirmation, or, at its strongest, to being a
help in choosing between one of several solutions which are conceivable within the
national legal system.
3. Judicial Views
The judicial pronouncements on the role of comparative reasoning, be it in judicial

or extra-judicial forum, are, in contrast to the elaborate theories in the German
scholarship, modest. This fact confirms the pre-eminence of legal scholarships in
the German legal tradition, certainly vis-à-vis the judiciary.68
65 Bydlinski (n 38) 386–7.

66 Uyterhoeven (n 52) 58–60; G Reinhart, ‘Rechtsvergleichung und richterliche Rechtsfortbildung
auf dem Gebiet des Privatsrecht’ in Richterliche Rechtsfortbildung (n 57).
67 Other theories and other calls, including those stressing greater need for comparative analysis, can
hardly be said to be more widely accepted in the legal scholarship. See notably in the context of consti-
tutional reasoning, P Häberle, ‘Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat—
Zugleich zur Rechtsvergleichung als “fünfter” Auslegungsmethode’ in P Häberle, Rechtsvergleichung im
Kraftfeld des Verfassungsstaates (Duncker und Humblot 1992).
68 For a traditional account in English, see RC Van Caenegem, Judges, Legislators and Professors
(CUP 1987) 53–65; for a more recent assessment, see S Vogenauer, ‘An Empire of Light? Learning and
136 Germany
3.1. The Judicial Forum

German judges rarely pass any general pronouncements in their decisions as to
what value a comparative argument had for them. In the vast majority of cases in
which any sort of at least implied comparative argument is run, this takes in the
form of a passing reference to a foreign material, without, however, there being any
general statements as to the place, utility or method for a comparative argument.
Examples of such ‘by the way’ style of referencing to foreign authority include
situations in which the court just states that the same (or differentiated) practice
was also the case for a court in a foreign country,69 or states that there was also no
such case in other legal systems.70 Very frequently, a reference to a decision of a
foreign court is simply included into a larger citation block of authorities, without
any further explanation given, introduced just by the somewhat laconic abbrevi-
ation ‘vgl. auch’ (cf also).71 It is obvious that in a judgment one can hardly expect a
long exposé on the functioning of comparative reasoning in courts or a special
signpost in the middle of the reasoning stating ‘now comes a comparative argu-
ment’. The approach of the highest German federal courts represents, however, the
other extreme, where one finds hardly any reflection on the suitability or purpose of
a foreign authority.
This absence is striking if one considers that the highest German federal courts
are generally not too shy in formulating broader interpretative guidelines in their
decisions, indicating how and why the lower (state) court has erred in the inter-
pretation of law.72 Their reasoning style is openly engaging with the national legal
scholarship and state courts, extensively quoting from the scholarly literature
(Schriftum) as well as decisions of federal and state courts. A lively debate between
the courts and the national scholarship is going on. The courts often cite tens of
scholarly works in one judgment and do not hesitate to state, to a foreign lawyer
with perhaps almost dismissive brevity, commonly just in one word, that the
opinion of author X is correct whereas the opposite approach advocated by the
author Y is wrong. Reading through similar decisions, one often has the impression
that a supreme federal judge is not called to decide a case between two (living)
parties, but an abstract academic dispute between the various scholarly strands in
the Schriftum.
Lawmaking in the History of German Law’ (2005) 64 CLJ 481 and S Vogenauer, ‘An Empire of Light?
II: Learning and Lawmaking in Germany Today’ (2006) 26 OJLS 627.
69 Cf, eg: ‘A comparable practice is also that one of the Swiss Federal Court’—BVerfGE 1, 97
(102); ‘the Swiss Federal court is of the same legal opinion’—BVerfGE 1, 322 (325); ‘similarly also
with respect to the French constitutional law of the Conseil d’Etat’—BVerfGE 118, 79 (96);
‘differently from this decision the Austrian Supreme Court and the Italian Corte di cassazione have
decided’—BGHZ 172, 330 (336).
70 Cf, eg: BVerfGE 1, 97 (101).
71 Cf, eg: BVerfGE 104, 337 (349); BVerfGE 4, 31 (37); BGHZ 172, 268 (275); BVerwGE 74,
139 (141); BVerwGE 39, 197 (199).

72 For a recent example, see eg: collective dissenting opinion of judges Voßkuhle, Osterloh, and Di
Fabio to BVerfGE 122, 248, which reads like a textbook on legal interpretation for law students.
Judicial Views 137
It is against such a legal context that one may suggest that the absence of any
pronouncements as to the value of comparative reasoning is surprising. There are
only a few cases in which the courts have introduced their comparative references
with at least little more than just the indistinct abbreviation ‘cf ’. These were one-
sentence statements typically introducing longer, specifically commissioned com-
parative studies73 on a contentious issue. Thus, for instance, the BGH introduced
the overview of the legislative solutions in more than a dozen European countries
by stating that the solution it wishes to adopt ‘corresponds with the prevailing
practice in European legal orders’.74 The BVerfG stated, asking itself whether or
not the criminalization of sexual intercourse between siblings is constitutional, that
‘within the European and outside European international comparison the legal
position concerning the penalization of the sexual intercourse between siblings is
predominantly the same, even though it differs in further details’.75
One recent decision of the BVerfG provides an illuminating exception to the
overall judicial silence on the issue. The case,76 decided in October 2006, was a
high-profile political litigation with a number of applicants, who challenged the
new federal law on incompatibility for members of parliament (MPs). The new
federal law came under attack for two reasons: first, it sought to limit other
professional activities of MPs, especially those in the liberal professions (lawyers,
doctors etc), thus seeking to introduce a genuine full-time mandate for MPs.
Second, the MPs were also asked to disclose all of their other income which they
gained from any profit-making activity during the exercise of their mandate.
It was especially the second question on which the second senate of the BVerfG
split. The ‘majority’ of four judges declared these provisions to be constitutional,
whereas the ‘minority’ of the other four judges found them to be incompatible with
the constitutionally guaranteed free mandate of MPs.77 One of the arguments on
which the minority differed from the majority was the evaluation of the compara-
tive materials before the court. In its reasoning, the majority referred to the
legislative solutions in 10 countries (various European countries and the USA).
On the basis of these references, the majority suggested that the legislative decision
to submit other income of MPs to public review, thereby seeking to prevent any
backstage financial influence being exercised on the decision-making within the
parliament, corresponded to international developments.78
73 Such studies are typically submitted either by one of the specialized Max-Planck-Institutes (eg
BVerfGE 120, 224) or by the German government itself, typically the Foreign Office (eg BVerfGE 46,
342).
74 BGHZ 173, 356 (359).
75 BVerfGE 120, 224 (230).
76 BVerfGE 118, 277.
77 Such a voting result within a senate of the BVerfG is possible due to the even number of the
members of each of the two (separate) senates of the BVerfG. Each has eight members. The provision
of } 15 (4), last sentence of the Law on the Constitutional Court [Bundesverfassungsgerichtsgesetz in
der Fassung der Bekanntmachung vom 11. August 1993 (BGBl. I S. 1473)] provides that in case of
equality of votes, the law is deemed to be constitutional.
78 BVerfGE 118, 277 (356).
138 Germany
The minority disagreed. It suggested that the majority drew incorrect conclu-
sions from the materials at hand. The main argument of the minority was the lack
of comparability. The challenged German regulation was, in their point of view, so
detailed and the obligations imposed on the MPs so onerous, that it had no parallel
in the regulations of other countries. The imposition of such a far-reaching
obligation of disclosure could thus not supported by the comparative examples
given, as in none of the countries would MPs be obliged to disclose every source of
income received during the exercise of their mandate.79
More broadly on methodology for comparisons in constitutional law, the
minority suggested that the majority ought to take into account the different
political, historical, and social background in the countries referred to when
interpreting their laws. In contrast to the countries referred to by the majority,
the German constitutional order lays greater emphasis on the protection of personal
data. Thus, in the balancing of the requirement of transparency with the right to
protection of personal data, the German equilibrium is different from the foreign
examples referred to.80
As is nonetheless evident, the argument of the minority was not against the use of
comparative reasoning as such. The minority just insisted on the requirement that
the knowledge gained from foreign sources should be localized and used while
taking account of the German context and particularities. The argument is thus not
whether to use comparative examples, but how.81
3.2. Extra-judicial Fora

Extra-judicial writings of German judges on the use of comparative reasoning or
methodological issues relating to it are scarce. The newer ones include those made
upon express invitation from abroad, addressing the question as to whether
German judges use comparative reasoning for their work, especially in the context
of constitutional adjudication.
In 2004, a justice at the BVerfG, Wolfgang Hoffmann-Riem,82 suggested that
legal solutions from other states may be seen as a pool of alternatives and a source
for creating new solutions in the domestic legal order. He pointed out, however,
that constitutional courts are reluctant to use comparative arguments. Apart from
the obvious obstacles (time, resources, and languages), the role of a constitutional
court is to provide for only limited change:
Applying a norm is not an act of revolution. New ideas must be adapted to traditional
solutions and to their foundation in the legal order and in the identity of the society.
79 BVerfGE 118, 277 (398).

80 BVerfGE 118, 277 (398–9).
81 An earlier (albeit not so outspoken) example of the difference between the majority and minority
view on the interpretation of foreign inspiration can also be found in BVerfGE 20, 162 (220). This was
equally a split decision, in which the ‘majority’—‘minority’ ratio was 4:4, thus making the use of
Art 15 (4) BVerfGG again necessary.
82 ‘Constitutional Court Judges’ Roundtable—Comparative Constitutionalism in Practice’ (2005)
3 I-CON 543, 556–60.

The Practice 139
One must keep in mind also that applying the constitution is not the same as writing a
law book or devising a new theory of law. Of special importance are the conditions for
acceptance and compliance ( . . . ).83
Caution was therefore advised, suggesting that the role of comparative analysis is
limited to supportive arguments. Finally, drawing on his experience, the learned
justice concluded that there are not many examples of explicit citations of foreign
constitutional decisions in the decisions of the BVerfG.84
Writing on the same topic about a year later, another member of the BVerfG,
Brun-Otto Bryde, offered a more optimistic outlook as far as the use of comparative
reasoning by the BVerfG was concerned.85 He suggested that there is a ‘huge gap
between the sources of the decision cited and those actually influencing the
judges’86 and that judges receive voluminous background materials, often contain-
ing comparative materials. These would, however, never be reproduced in the
references in the decision itself. He also added that
I do not claim that the Court regularly works on the basis of extensive comparative
research. A constitutional court is not a comparative law institute and never will
become one ( . . . ) Usually the inclusion of foreign material materials depends on
their availability ( . . . ) the extent to which the Court takes note of foreign law is
decided by the productivity of German comparative law scholarship.87
In the cases when any foreign authority is displayed, it would only be to provide
additional legitimacy. In cases where comparative reasoning is a source of inspiration,
it might be, in the point of view of the learned judge, equated with legal scholarship
or any other persuasive source often used in domestic reasoning, in respect of which
there are only minimal normative or methodological requirements.88
4. The Practice
In assessing the practice of the use of comparative reasoning by German federal
supreme courts, one can take advantage of a number of scholarly works discussing
this phenomenon in the past. Ever since the 1950s, German scholarship has
displayed a constant interest in the use of comparative arguments by courts. This
may not be a massive interest, but it is a stable one, freshly assessing the use of
comparative reasoning by federal supreme jurisdictions roughly every decade since
83 Constitutional Roundtable (n 82) 558.

84 Constitutional Roundtable (n 82) 559.
85 ‘The Constitutional Judge and the International Constitutionalist Dialogue’ in B Markesinis and
J Fedtke, Judicial Recourse to Foreign Law: A New Source of Inspiration? (UCL Press 2006) 295–308.
86 Markesinis and Fedtke (n 85) 297.
87 Markesinis and Fedtke (n 85) 297–8.
88 Markesinis and Fedtke (n 85) 303.
140 Germany
the Second World War. This allows for a solid account of the German practice in
the past decades and its mutation over time.
In a comparative view, the style of German judicial decisions is open to
references beyond national statutes. A German judicial decision at the federal
level typically extensively quotes its own previous case law and also relevant
decisions of other federal or state jurisdictions. Scholarly works are quoted in
abundance, making the German federal courts the champions as far as the number
of quotations is concerned amongst all the legal systems studies in this work.89
4.1. Bundesverfassungsgericht
The Federal Constitutional Court is the jurisdiction with the greatest number of
open references to non-mandatory foreign sources amongst the federal courts.
Nonetheless, in quantitative terms, the number of cases is small. On average, it
amounts to one or two decisions within thousands of decisions rendered every year.
On the other hand, the comparative interest has been stable, covering the entire
history of the BVerfG.
The BVerfG recognized early on that the use of comparative reasoning might
function as auxiliary means for the interpretation and the closing of gaps.90 An
analysis of the case law of the BVerfG from 197491 revealed that between 1951 and
1973,the BVerfG employed comparative reasoning in twenty-four cases. A detailed
study of the practice of the BVerfG was recently carried out by AM Cárdenas
Paulsen.92 She studied the published case law of the BVerfG between 1951 and
July 200793 and found in total fifty-nine decisions in which the BVerfG referred to
foreign judicial decisions.
There are, however, three points which should be made with respect to this
figure for the purpose of this study. First, out of the fifty-nine decisions identified
by Cárdenas Paulsen, twenty were rendered in special proceedings under which the
BVerfG may be asked to ascertain whether or not there is a general rule of
international law, which would be, according to Article 25 GG, part of German
federal law. References to the decisions of foreign international and national courts
in such situation cannot be said to be an instance of non-mandatory comparisons.94
The federal constitutional judge is obliged, when ascertaining whether there is an
89 H Kötz suggested that in the 1980s, an average decision of the BGH in civil cases contained
approximately 13 citations of scholarly works (book, commentaries, articles etc). An average English
decision contained 1.45 citations and a US Supreme Court decision about 7.14 citations. See: H Kötz,
‘Die Zitierpraxis der Gerichte: Eine vergleichende Skizze’ (1988) 52 RabelsZ 644, later published also
in English as ‘Scholarship and the Courts: A Comparative Survey’ in DS Clark (ed), Comparative Law
and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday
(Duncker & Humblot 1990).
90 BVerfGE 3, 225 (244–5).
91 JM Mössner, ‘Rechtsvergleichung und Verfassungsrechtsprechung’ (1974) 99 AöR 193.
92 AM Cárdenas Paulsen, Über die Rechtsvergleichung in der Rechtsprechung des Bundesverfassungs-
gerichts (Dr Kovač 2009).

93 Vols 1–118 of the official collection of the decisions of the BVerfG.
94 See further ch 2, section 2.3.
The Practice 141
already formed rule of public international law, to look beyond the national legal
system and to work comparatively.95 The thus created rule is then directly incor-
porated into the German legal order, which means that no mental process of
comparison between the domestic and foreign is carried out. If one were therefore
to subtract the references to foreign law from the overall number of cases, the
identified instances of non-mandatory comparative reasoning would be down to
thirty-nine.
Second, Cárdenas Paulsen’s study covered only decisions published in the official
collection of the case law of the BVerfG. There may thus be decisions in which
comparative reasoning was used but which were not selected by the members of the
BVerfG for publication. Although such decisions might exist, it is suggested that
they are likely to be only very few.96 Comparative reasoning is an extra activity,
which judges are likely to undertake only in significant cases. These cases will
typically be selected and published in the official collection of the decisions of the
court.
Third, Cárdenas Paulsen’s study focuses only on the references to foreign case
law.97 The study does not include references to foreign laws as such, especially
constitutional laws and perhaps also statutes from other countries. There may thus
be other, additional instances in which the BVerfG referred to constitutional
provisions of other states, or, even more generally, to generally shared traditions
common to the Western countries, etc, without, however, referring its conclusion
to any specific judicial decisions. This would in turn mean that the actual figure
containing all the references to general foreign authority might be higher.
It may nonetheless be suggested that the final figure will not differ much.
A review of the most recent decisions of the BVerfG confirms the suggestion that
on average, the BVerfG refers to foreign inspiration just a few times a year. Reading
through all the published decisions of the BVerfG for 2008,98 one discovers in total
three comparative references. The first of them was a passing reference to the
French Conseil d’Etat in relation to the competence of a national constitutional
court to review the national transposition measures of an EU directive.99 The
second one was the already mentioned case of the duty to disclose all other income
for the members of the German Bundestag, where the BVerfG carried out a
95 The reference to foreign law in these cases would be multiple, involving not only the references to
decisions of international courts or adjudication bodies (International Court of Justice; the Permanent
Court of International Justice; International Criminal Court for Former Yugoslavia; and various
arbitration courts), but also the decisions of national courts deciding on international public law
issues. From the more recent cases, see, eg: BVerfGE 118, 244; BVerfGE 118, 124; BVerfGE 117,
141; BVerfGE 116, 68; BVerfGE 113, 273; BVerfGE 112, 1; BVerfGE 104, 151.
96 Cárdenas Paulsen (n 92) 31 identified only three such decisions.
97 Cárdenas Paulsen (n 92) 7–8.
98 Entscheidungen des Bundesverfassungsgerichts (Mohr Siebeck), vols 118, 119, and 120 contain in
total a selection of twenty-nine decisions, rendered in the period between 13 February 2007 and 11
March 2008.
99 BVerfGE 118, 79 (96), referring to the decision of the CdE of 8 February 2007, case no 287110
(Société Arcelor Atlantique et Lorraine et autres). At BVerfGE 118, 79 (98), the BVerfG also referred to
further foreign scholarly works dealing with the issue of implementation of directives in other Member
States.
142 Germany
comparative survey of the legal regime in other European countries and the
USA.100 The third non-mandatory reference to foreign law was made in a case of
a constitutional complaint submitted by a person convicted of incest (sexual
intercourse between siblings). There the BVerfG referred to a number of foreign
countries and stated that the criminalization of incest is nothing uncommon in
European as well as extra-European legal cultures.101
On average therefore, the BVerfG openly uses comparative argument not more
often than two or three times a year. That is not much, if one considers that the
BVerfG disposes of approximately 6000 cases every year.102 However, the vast
majority of these decisions are those concerning individual constitutional com-
plaints, which are disposed of summarily. Cases, in which the BVerfG goes deeper
into the merits of the pending case, would be just a few hundred every year.103 Out
of these, the instances of open reference to foreign inspiration are the more
significant cases, in which the difficult choices to be made justified the extra
work. However, even if one were to take as the reference sample only the decisions
on merits, or, alternatively, just the decisions published in the official collection of
the BVerfG, the use of any comparative arguments in the case law of the BVerfG
amounts just to per mille of all the cases decided on merits, or a maximum of up to
roughly 2 per cent of all the decisions published in the official collection.
There might naturally be instances of hidden, non-disclosed foreign inspiration.
As suggested in the statement of the already quoted Justice Brun-Otto Bryde,104
the background materials prepared by the reporting judge would ‘often’ include
comparative material. One may only speculate to what quantity ‘often’ might refer.
If the ‘often’ were significantly more than those two or three decisions annually
which displayed any comparative inspiration, this would mean that for whatever
reason, the BVerfG was deviating from its normal extensive quotation practice.
As already mentioned above, the German federal courts, including the BVerfG,
are very open to the use of non-mandatory authority, especially scholarly writings.
For instance, in every single decision published in the 2008 official collection of the
decisions of the court, the BVerfG quoted its previous case law extensively. It also
often referred to the case law of other federal courts and state (typically consti-
tutional) courts. In every published decision in that year, the BVerfG quoted
academic writings. In a few cases, the BVerfG referred to the decisions of the
100 BVerfGE 118, 277 (356), discussed in the text to nn 76–81.

101 BVerfGE 120, 224 (230). Reference was made to more than a dozen countries, not just in
relation to present legal situation, but especially the history and the past of criminalization of incest.
The historical overview was indeed thorough, starting with Hammurabi, Moses and going through
ancient Rome, the Middle Ages, to the theme of incest in 19th-century German poetry.
102 Judicial statistics of the BVerfG are accessible online at <http://www.bverfg.de>. In the past 15
years, the docket of the BVerfG has oscillated between 4620 new cases every year (in 2001) and 6508
(in 2009). The figures for new cases would be 6154 in 2007; 6378 in 2008 and 6508 in 2009.
103 See the detailed breakdown of the statistics according to the respective decision-making
formation (Senat, Kammer, or Richterausschluss) in the table no A. I. 5. at <http://www.bverfg.de>.

104 See n 85.
The Practice 143
ECtHR and the Court of Justice of the EU.105 Finally, exceptionally, the BVerfG
cited also non-legal literature, be it scientific literature from fields other than law, or
German classic literature.106
With such openness to secondary legal sources and tolerance to persuasive
arguments, only two explanations are possible with respect to the absence of
quotations from comparative legal materials which would ‘often’ be presented to
the judges. Either the judges of the BVerfG feel for whatever reason107 self-
restrained in quoting any source from outside Germany, or, alternatively, the
‘often’ might not actually be that often after all.
Finally, as far as the more qualitative aspects of comparative reasoning by the
BVerfG are concerned, Jörg Mössner108 suggested that the BVerfG uses compara-
tive arguments in three situations, in particular: first, the BVerfG refers to foreign
authorities for additional support in order to positively create a new constitutional
principle, stating that such a principle which it decided to announce is also known
in other countries.109 Second, foreign inspiration serves for the negative concretiza-
tion of a domestic constitutional principle: a foreign solution would be distin-
guished from the German one by stating that the solution extant in country X is not
the part of the German constitutional tradition.110 Third, a reference to legislative
solutions in other countries may also be employed as a sociological/empirical
argument, demonstrating that a certain legislative solution is possible or accept-
able.111
The areas in which comparative reasoning was used included fundamental
rights112 and constitutional principles,113 but also competence issues in consti-
tutional review,114 the interpretation of international treaties,115 and also instances
105 The figure would lie at about 5 per cent of cases with respect to each of the European courts.
106 For instance, in the decision BVerfGE 119, 1, which concerned the prohibition of Max Biller’s
novel ‘Esra’, dissenting Justices Hohmann-Dennhardt and Gaier used the reference to Goethe’s Die
Leiden des jungen Werthers as an example of a book which would probably, under the new test
announced in the case by the majority, also be banned, as Goethe used recognizable and real life
figures for devising his characters in the novel—BVerfGE 119, 1 (41).
107 For a general discussion of potential reasons for ‘reading but not quoting’, see further ch 12,
sections 3 and 4.
108 Mössner (n 91).
109 Cf, eg: BVerfGE 1, 97 (101); BVerfGE 1, 144 (151); BVerfGE 1, 372 (381); BVerfGE 2, 181
(206); BVerfGE 4, 31 (37); BVerfGE 7, 29 (40); BVerfGE 7, 198 (208).

110 Cf, eg: BVerfGE 1, 208 (253); BVerfGE 4, 299 (303); BVerfGE 18, 112 (117); BVerfGE 20,
162 (220).
111 Cf, eg: BVerfGE 7, 377 (415), which concerned the issue whether or not the German legislation
restricting the free establishment of pharmacists can be justified by the overriding societal interest of
providing for continuous and equal distribution of medications within the state territory. The BVerfG
referred to the experience of other, ‘Federal Republic Germany civilization-wise comparable countries’,
which allowed for the free establishment of pharmacists and it had for consequence no apparent
dangers to the public health and distribution of medications.
112 From the recent cases, cf, eg: BVerfGE 116, 243; BVerfGE 116, 135; BVerfGE 104, 337;
BVerfGE 93, 1.
113 Cf, eg: BVerfGE 95, 335; BVerfGE 73, 40; BVerGE 68, 1.
114 These are, in particular, older cases, in which the BVerfG was shaping its own competences shortly
after its establishment—see, eg: BVerfGE 1, 97; BVerfGE 1, 322; BVerfGE 2, 79; BVerfGE 3, 41.
115 Cf, eg: BVerfGE 6, 290 or BVerfGE 99, 145.
144 Germany
in which the BVerfG was looking into the domestic application of EU law in other
Member States.116
The most often invoked inspiration in the case law of the BVerfG is the legal
system of the USA, mostly decisions of the US Supreme Court. Swiss (federal) case
law takes the second place, followed by Austria and France. Other geographical
sources of inspiration worth mentioning include English law, Italy, and the Nether-
lands. There are, however, also cases which cannot be geographically allocated. The
BVerfG generally referred to simply ‘most countries’ or ‘generally accepted or
shared values’ (of the Western world), without, however, supporting these claims
with any exact references.117
One may note, especially in the newer decisions of the BVerfG, a rise in the
number of countries included in a comparative survey. Whereas in the earlier cases,
a comparative argument typically included just reference to one, two or perhaps
three countries, in the more recent decisions, there are cases with almost a dozen
countries referred to.118
4.2. Bundesgerichtshof
The use of comparative reasoning by the Federal Supreme Court, especially in its
decisions on civil matters, has been the subject of constant interest in the German
scholarship.119 The picture emerging from these writings suggests that the use of
comparative argumentation in the decision-making of the BGH, be it in civil or
criminal matters, is very marginal. With the tongue in cheek, one could suggest that
there might actually be more scholarly articles on the use of comparative law by the
BGH than there is actual, displayed use of comparative arguments by the BGH
itself.
116 Apart from the already mentioned BVerfGE 118, 79, see also BVerfGE 37, 271 or BVerfGE 73,
339. Cf also the recent decision on the Treaty of Lisbon, where the BVerfG cited a decision of the
French Conseil constitutionnel—BVerfGE 123, 267 (312).
117 Mössner (n 91) 228; Cárdenas Paulsen (n 92) 56–63.
118 The already mentioned BVerfGE 118, 277 (the duty of disclosure of all sources of income of the
MPs), for instance, included references to the United States, Spain, Sweden, Norway, Switzerland,
Poland, Croatia, Latvia, Italy, and the Netherlands.
119 See, eg: H Dölle, ‘Der Beitrag der Rechtsvergleichung zum deutschen Recht’ in Hundert Jahre
deutsches Rechtsleben—Festschrift zum Hundertjährigen Bestehen des Deutschen Juristentages: Band II

(Müller 1960); B Aubin, ‘Die rechtsvergleichende Interpretation autonom-internen Rechts in der
deutschen Rechtsprechung’ (1970) 34 RabelsZ 458; B Großfeld, ‘Vom Beitrag der Rechtsvergleichung
zum deutschen Recht’ (1984) 184 AcP 289; U Drobnig, ‘Rechtsvergleichung in der deutschen
Rechtsprechung’ (1986) 50 RabelsZ 610; G Reinhart, ‘Rechtsvergleichung und richterliche Re-
chtsfortbildung auf dem Gebiet des Privatsrecht’ in Richterliche Rechtsfortbildung. Erscheinungsformen,
Auftrag und Grenzen: Festschrift der Juristischen Fakultät zur 600-Jahr-Feier der Ruprechts-Karls-
Universität Heidelberg (Müller 1986); U Drobnig, ‘The Use of Foreign Law by German Courts’ in
U Drobnig and S Van Erp (eds), The Use of Comparative Law by Courts (Kluwer 1999); H Kötz, ‘Der
Bundesgerichtshof und die Rechtsvergleichung’ in A Heldrich and KJ Hopt (eds), 50 Jahre Bundes-
gerichtshof: Band II (CH Beck 2000); H Unberath, ‘Comparative Law in the German Courts’ in Guy
Canivet and others (eds), Comparative Law before the Courts (BIICL 2004); MM Siems, ‘Citation
Patterns of the German Federal Supreme Court and the Court of Appeal of England and Wales’ (2010)
21 KLJ 152.
The Practice 145
Dealing with this topic in a study published in 1960, Hans Dölle gave more
examples of comparative reasoning from the case law of the German Reichsgericht
before 1931 than from the practice of the BGH after the Second World War.120 In
1970, Bernhard Aubin identified still more examples of comparative reasoning
from the time before the Second World War, giving just seven instances of
comparative argument employed by the BGH in civil matters after the Second
World War and two in criminal matters.121 In 1986, Ulrich Drobnig listed forty
decisions of the BGH, rendered in the period 1950–1980 and having foreign law
aspects. This list, however, also included instances of mandatory uses of foreign law,
in particular questions of international private law. The group of non-mandatory
uses of foreign law, which he did not single out in numerical terms, would thus be
much smaller. On the whole, even with respect to all uses of foreign law, Drobnig
suggested that the contribution of comparative reasoning to the German case law
was very marginal.122 Writing in 2000, Hein Kötz123 identified just about a dozen
decisions of the BGH in its fifty-year history when the court was openly employing
a comparative argument in cases of non-mandatory use of foreign law. Most of
these cases were rendered by the civil divisions of the BGH; four of them, however,
originated also from the criminal division. The BHG employed comparative
argument as yet an additional supportive argument to show that the opinion it
reached is shared by other legal systems as well.124 In 2010, MM Siems suggested
that in the period between 1984 and 2006, foreign judicial decisions were quoted
in 0.45 per cent of the decisions of the BGH. This figure combined both manda-
tory as well as non-mandatory references to foreign law.125
Geographically seen, the BGH pays most attention to the law of the neighbour-
ing German-speaking countries, Switzerland and Austria. The preferred instance of
comparisons is Switzerland and especially the Swiss Civil Code, with references to
Austria and to the Austrian General Civil Code somewhat in decline.126
With just a handful of cases identified in the German writings, the conclusion
on the quantitative aspect of the use of non-mandatory comparative arguments by
the BGH might be that the court did not use comparative arguments but once
every few years. Such an outlook is, however, perhaps too gloomy. A review of
the BGH’s case law in civil matters published in the year 2008127 offers a slightly
more optimistic vision. In its published decisions, the BGH twice employed a
120 Dölle (n 119) 33–7. 121 Aubin (n 119) 461, 465, and 478.
122 Drobnig (n 119) 612 (verschwindend gering). 123 Kötz (n 119) 832.
124 Kötz (n 119) 835.
125 Siems (n 119) n 50. Siems also suggested that the standard deviation for these figures is roughly
the same as the figures themselves.

126 Aubin (n 119) 477; Drobnig (n 119) 626. See also K Siehr, ‘Die Zeitschrift für Schweizerisches
Recht und das schweizerische Privatrecht in der deutschen Rechtspraxis’ (1981) 100 Zeitschrift für
Schweizerisches Recht 51. But see Siems (n 119) text to fn 64 and fn 65 or M Siems, ‘Networks,
Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s
Highest Courts’ (2012) 8 Utrecht LR 88, 92–4.
127 Entscheidungen des Bundesgerichtshofes in Zivilsachen (Carl Heymanns Verlag), vols 172–6
contain in total 174 selected decisions issued by the BGH in the period between 27 March 2007
and 29 May 2008.
146 Germany
comparative argument and twice uttered a passim reference, within a larger block
quotation, to a foreign non-mandatory material.128 The two instances of open
comparative reasoning were, firstly, the issue of contractual liability of a sub-
contractor in international transport129 and, secondly, the question of invention
(patent) ownership in cases when the invention was made by an employee.130
On the whole, however, it is true that the direct and open use of comparative
arguments in the decision-making of the BGH is very limited. Similarly to the
BVerfG, the BGH does not hesitate to use non-mandatory legal sources: in the set
of decisions published in 2008, in all but one of the published decisions, the BGH
quoted extensively from its previous case law and the case law of other supreme
federal courts and state courts. In 91 per cent of cases, the BGH referred to German
scholarly writings, sometimes in a strikingly lengthy manner.131 The law of the EU
and the case law of the Court of Justice were cited in 11 per cent of cases, the case
law of the ECtHR only in one case. The BGH also relatively frequently referred to
older German law and case law, including the decisions of the Reichsgericht.
Even with such openness to non-mandatory legal sources, the use of foreign
sources was very marginal. To put it in context: annually, the civil division of the
128 The two passim references were a reference to a decision of the Austrian Oberster Gerichtshof in
BGHZ 172, 268 (275) and a reference to a decision of the EFTA Court in BGHZ 173, 230 (245).
The latter was a case concerning the issue of parallel imports, where the BGH dealt extensively with EU
law, using the reference to the EFTA Court as a type of additional (in the context of the case, in fact
comparative) argument.
129 BGHZ 172, 330 (336). The BGH noted that its previous interpretation was strongly criticized
by the German scholarship and that is also deviates from the interpretation adopted by the Austrian
Oberster Gerichtshof and the Italian Corte di Cassazione.
130 BGHZ 173, 356 (359). The BGH used the reference to the legislative solutions in a number of
European countries to note that the approach it decided to adopt is more universally shared.
131 A not uncommon example of such quotation frenzy could be for instance taken from BGHZ
172, 209 (212), where the BGH opined:

‘Ob dementsprechend auch ein Miteigentumsanteil an einem Grundstück aufgegeben werden kann,
ist seit jeher umstritten. Die überwiegende Meinung im Schrifttum bejahte dies früher, während eine
Gegenansicht die Anwendung des } 928 Abs. 1 BGB mit der gesetzlichen Regelung des Ge-
meinschaftsverhältnisses für unvereinbar hielt (Nachweise in Senat, BGHZ 115, 1, 7). Nunmehr
teilen die Rechtsprechung—bisher auch das vorlegende Gericht—und Literatur ganz überwiegend die
von dem Senat in seiner Entscheidung vom 7. Juni 1991 (BGHZ 115, 1, 7 ff.) vertretene Ansicht, dass
ein Miteigentumsanteil an einem Grundstück nicht entsprechend } 928 Abs. 1 BGB durch Verzicht
aufgegeben werden kann (siehe nur OLG Hamm NJWE-MietR 1996, 61; OLG Celle NJW-RR
2000, 227, 228; OLG Düsseldorf NJW-RR 2001, 233; AnwK-BGB/Grziwotz, } 928 Rdn. 4;
Bamberger/Roth/Grün, BGB, } 928 Rdn. 2; Bamberger/Roth/Fritzsche, BGB, } 1008 Rdn. 20; 9
Erman/Lorenz, BGB, 11. Aufl., } 928 Rdn. 2; Jauernig/Stürner, BGB, 11. Aufl., } 748 Rdn. 16;
Jauernig, aaO, } 928 Rdn. 2; juris PK-BGB/Benning, 2. Aufl., } 928 Rdn. 6; Palandt/Bassenge, BGB,
66. Aufl., } 928 Rdn. 1; PWW-BGB/Huhn, 2. Aufl., } 928 Rdn. 1; Soergel/Stürner, BGB, 13. Aufl.,
} 928 Rdn. 1; Staudinger/Langhein, BGB [2002], } 747 Rdn. 17 f.; Staudinger/Pfeifer, BGB [2004],
} 928 Rdn. 8; Demharter, GBO, 25. Aufl., Anh. zu } 44 Rdn. 4; Schöner/Stöber, Grundbuchrecht,
13. Aufl., Rdn. 1031; Schwab/Prütting, Sachenrecht, 32. Aufl., Rdn. 368; Wilhelm, Sachenrecht, 2.
Aufl., Rdn. 136 f.; zweifelnd MünchKomm-BGB/K. Schmidt, 4. Aufl., } 747 Rdn. 16 und } 1008
Rdn. 16; a. A. MünchKomm-BGB/Kanzleiter, 4. Aufl., } 928 Rdn. 3; Westermann/Gursky/Eick-
mann, Sachenrecht, 7. Aufl., } 86. 1; Wieling, Sachenrecht, 4. Aufl., } 23 III 3a; Finkenauer, Eigentum
und Zeitablauf, S. 154 f.; Schnorr, Die Gemeinschaft nach Bruchteilen (}} 741–758 BGB), S. 284 ff.;
Reichard, Festschrift für Otte [2005], S. 265, 284; Kanzleiter, NJW 1996, 905, 906).’
The Practice 147
BGH decides over 3000 cases,132 the criminal division a little under 3000 cases.133
Decisions on merits are several hundred. Within such a number of decisions, the
above-described comparative inspiration can be said to be negligible.
4.3. Bundesverwaltungsgericht
Amongst the three German federal jurisdictions studied in this chapter, the Federal
Administrative Court is the court with the least detectable traces of any comparative
reasoning. The articles quoted above, carrying out empirical studies of the practice
of comparative reasoning of the federal jurisdictions, either do not mention any
cases from the BVerwG at all or they give just one or two isolated instances.134
If one opens the collection of the decisions of the BVerwG for 2008135 and reads
through all the decisions published therein, one will not find a single instance of
any comparative argument being employed by the BVerwG. Similarly to the BGH,
in its published decisions for that period, the BVerwG extensively quoted from its
own previous case law and also the case law of other federal courts and state
courts.136 It also included numerous references to German scholarly works.137 In
every fifth case, reference was made to the case law of the Court of Justice of the
EU.138 The case law of the ECtHR was referred to less often.139 But no single
instance of non-mandatory foreign inspiration could be identified.
A search in the older case law of the BVerwG suggested that the Court was using
comparative arguments very rarely, roughly just a few times in a decade. Apart from
the one example mentioned by Drobnig,140 other examples might include inspir-
ation taken from the French Conseil d’Etat and its case law on acte clair in order not
to have to refer a request for a preliminary ruling to the Court of Justice even before
the Court of Justice itself accepted this exception in its CILFIT decision;141 a
reference to US and English decisions on obscenity in the context of justification
for prohibiting publication of youth periodicals;142 or a reference to the Swiss
constitutional law as far as the scope of permissible legislative delegation of
competence in matters of levying charges by the executive was concerned, which
132 Übersicht über den Geschäftsgang bei den Zivilsenaten des Bundesgerichtshofes 2009, accessible
online at <http://www.bgh.de>, p 6. The exact figures were 3404 (for 2007), 3230 (for 2008), and
3192 (for 2009).
133 Übersicht über den Geschäftsgang bei den Strafsenaten des Bundesgerichtshofes im Jahre 2009,
online at <http://www.bgh.de>, p 16. The exact figures were 2987 (for 2007), 3188 (for 2008) and
2949 (for 2009).
134 Drobnig (n 119) mentions only one case: BVerwGE 12, 42 (44).
135 Entscheidungen des Bundesverwaltungsgerichts (Carl Heymanns Verlag), vols 129 and 130
contain in total 65 published decisions issued between 26 April 2007 and 13 March 2008.
136 The BVerwG quoted the case law of German courts (its own and others combined) in 97 per
cent of published cases, often dozens of decisions.

137 Scholarly works (textbooks, commentaries, articles, and case notes combined) were quoted in 69
per cent of decisions, again, similar to the example of the BGH in quite an extensive manner.
138 The case law of the EU courts (including opinions of AGs) was invoked in 20 per cent of cases.
139 In about 5 per cent of cases.
140 BVerwGE 12, 42 (44).
141 BVerwGE 36, 33 (44).
142 BVerwGE 39, 197 (207 and 209).
148 Germany
traditionally is a competence constitutionally reserved to a statute enacted by the
parliament (Gesetzesvorbehalt).143
The absence of any comparative aspect in the decisions of the BVerwG is rather
surprising, not just in comparison to the BVerfG and BGH, but also with respect to
the legal questions the BVerwG has recently been facing, which are indeed
internationally shared. If one looks into the cases published in the 2008 collection
of cases, one finds questions which are being dealt with by other (not just)
European supreme jurisdictions as well, including constitutional issues (limitation
on public assembly, citizenship laws); foreigner laws (detention, expulsion from the
national territory); the right to social benefits for registered partners; data protec-
tion; terrorism fight and surveillance measures; and also numerous areas of domes-
tic implementation of EU law (trade in emissions, the status of third country
nationals, waste management and trade in waste, asylum law). And yet, within the
overall caseload of the BVerwG, which amounts to less than 2000 cases decided
every year,144 the use of comparative arguments by the BVerwG in merely units
over a decade might be considered just a statistical mistake.
There is, however, a recent development in the case law of the BVerwG in
asylum matters which should be mentioned. First, in recent years, the specialized
chamber of the BVerwG dealing with asylum matters has started to refer to the case
law of other national courts in asylum matters.145 Second, the BVerwG has
established a dedicated section on its website, where it publishes a selection of its
decisions on asylum matters translated into English. It thus appears that the
BVerwG146 is starting to take seriously the duties under the developing Common
European Asylum System, which should include, inter alia, greater horizontal
awareness of the decisions in asylum matters rendered by the courts in other
Member States.147
5. The Overall Picture: The Pre-eminence

of Scholarly Comparisons
German (federal) legal system offers an example of a legal tradition with a general
openness to persuasive sources, but with very limited or non-existent direct
argumentative use of foreign authority by the courts. At the same time, however,
it would be wrong to state that this means that there is no foreign inspiration in the
143 BVerwGE 74, 139 (142).

144 The statistics of the BVerwG judicial activity, which are accessible at <http://www.bverwg.de>,
indicate that the BVerwG annually disposes of about 1700 cases—1987 cases in 2007, 1712 in 2008,
and 1577 in 2009.
145 It is the chamber 10 C which specializes in asylum matters—see, eg: judgment of 12 February
2009, BVerwG 10 C 50.07, or the order of 14 October 2008, BverwG 10 C 48.07, accessible at
<http://www.bverwg.de>.
146 Or perhaps rather some of its judges, members of the International Association of Refugee Law
Judges and also members of the chamber specializing in asylum matters.

147 See generally: H Lambert, ‘Transnational Judicial Dialogue, Harmonisation and the Common
European Asylum System’ (2009) 58 ICLQ 519, 522ff.

The Overall Picture 149
case law of the German courts. The potential inspiration would, however, be
indirect, mediated through the legal scholarship and/or the legislator.
As aptly captured by the already quoted constitutional judge Bryde: ‘( . . . ) the
extent to which the Court takes note of foreign law is decided by the productivity of
German comparative law scholarship.’148 There is quite a strong tradition of
comparative study in Germany. However, respecting the overall constitutional
tradition, it is a matter for the German scholarship and for the legislator,149 not
for the courts. The proactive, dynamic element in the German legal system, or as
Vogenauer puts it, the torchbearer showing the light to the judges,150 is (still) legal
scholarship. The tradition of (comparative) law as a scholarly enterprise goes well
back in the Middle Ages, but was further entrenched in the 19th century before
German unification, where intra- as well as extra-German comparison was a tool for
laying the foundations of later federal German law after 1871.151
In such cultural settings, German courts would only very rarely go and look
themselves for direct comparative inspiration. It might be suggested that these
limited instances would be those in which the otherwise solid German scholarship
failed to provide enough own comparative material and discussion.152
In the instances in which the German courts directly engaged with any foreign
inspiration, their practice was differentiated. Most often, a German court simply
included a passing reference to a foreign decision in a rather longer citation block,
thus limiting, at first sight, comparative reasoning to a sort of additional ornamental
authority. This again should be viewed against the context of the German style of
judicial reasoning at the supreme federal level, where references to case law have
often just bibliographic value. The work with case law is different from English
decisions. A German court would typically not engage in greater depth with
precedent, with a discussion of its various aspects and applications.153
As has been shown, the comparative practice of the various federal courts differs.
The most visibly open court is the BVerfG, which mostly refers to US federal law
and the US Supreme Court. Less open but still with some instances of direct
engagement with the non-mandatory foreign inspiration is the BGH in civil
matters, which mostly refers to Switzerland and sometimes Austria. The very rare
148 See n 85, 297–8. Großfeld (n 119) 295 in this respect also adds that ‘It is generally better to let
the comparative law run through the filter of legal scholarship’. See also Unberath (n 119) 307–16,
who gave examples from the civil law adjudication of the BGH of indirect influence of foreign law
through German scholarship.
149 An earlier study suggested that comparative considerations by the German legislator are the rule,
to which exceptions could be found in certain areas. See U Drobnig and P Dopffel, ‘Die Nutzung der
Rechtsvergleichung durch den deutschen Gesetzgeber’ (1982) 46 RabelsZ 253.
150 S Vogenauer, ‘An Empire of Light? Learning and Lawmaking in the History of German Law’
(2005) 64 CLJ 481, 482, 494.

151 M Stolleis, Nationalität und Internationalität: Rechtsvergleichung im öffentlichen Recht des 19.
Jahrhunderts (Steiner 1998) or H Coing, Rechtsvergleichung als Grundlage von Gesetzgebung im 19.
Jahrhundert (Klostermann 1978).
152 See generally: S Vogenauer, ‘An Empire of Light? II: Learning and Lawmaking in Germany
Today’ (2006) 26 OJLS 627, 648–51 and 656–60.

153 B Markesinis, ‘Judicial Style and Judicial Reasoning in England and Germany’ (2000) 59 CLJ
294. See also H Kötz, Die Begründung höchstrichterlicher Urteile (Kluwer 1982).
150 Germany
references in administrative law or criminal law are made mostly to French law and
sometimes to English law.154 The German picture of legal exchange is thus mosaic-
like. It is in its nature eclectic, inspiration drawn, for historical reasons, from various
geographical sources.
On the other hand, there is a visible and distinct US influence in constitutional
law. This can again be explained historically. An obvious and often repeated reason
is the post Second World War US presence in Germany.155 The German consti-
tutional orientation towards the US has, however, much deeper roots, going back
to the beginning of 19th century. The US Constitution was the preferred model
and source of inspiration for the early German federalist movement before German
unification. Already in the constitutional convention in the Frankfurter Paulskirche
in 1848, the US Constitution was one of the most often quoted documents.156
Since the Second World War, the German-US exchange has also become strong in
academic terms.157 Amongst other things, obtaining an LLM degree has virtually
become a must for any German legal academic.
In relation to the US post Second World War influence in particular, one may
speak of certain waves of comparative inspiration, the strongest of them being that
immediately after the Second Word War.158 This observation might be correct
with respect to the BVerfG, whose performance in terms of quantity of open
foreign references was strongest in the first four years of its existence (1951–
1954). This is understandable not only because of the already described geo-
political situation in post-war Germany, but also by the fact that at that time, the
BVerfG was a new institution which needed to define its role and competence.159
Constitutional courts as new institutions within a legal order are more likely to
consult and refer to foreign inspiration and authority in order to back up their own.
This could be translated into a more numerous referencing practice to foreign laws
and courts, surely more numerous than the referencing practice of the already
established supreme jurisdictions within the same legal system.
Finally, when assessing the judicial comparisons carried out by the German
federal courts, one should be mindful of the very fact stated in their names: they are
federal courts. Additionally, the federal jurisdiction is split, as was explained in the
154 See generally: Schulze (n 18) 183; H Coing, ‘L’influence de la France sur le Droit Allemand’ in
H Coing, Gesammelte Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: 1947–1975 (Klos-

termann 1982).
155 And the US influence on the 1949 drafting of the Grundgesetz—see generally: B Pieroth,
‘Amerikanischer Verfassungsexport nach Deutschland’ [1989] NJW 1333.

156 H Steinberger, 200 Jahre amerikanische Bundesverfassung: Zu Einflüssen des amerikanischen
Verfassungsrechts auf die deutsche Verfassungsentwicklung (de Gruyter 1987) 14–15.

157 The German-US academic exchange had been strong even before, in particular in the second
half of the 19th century. It was happening, however, in the opposite direction to that of today. See, eg:
M Reimann (ed), The Reception of Continental Ideas in the Common Law World: 1820–1920 (Duncker
und Humblot 1993) and M Reimann, Historische Schule and Common Law: Die deutsche Rechtswis-
senschaft des 19. Jahrhunderts im amerikanischen Rechtsdenken (Duncker und Humblot 1993).
158 See, eg: Aubin (n 119) 463–7; Cárdenas Paulsen (n 92) 34–43.
159 See M Kau, United States Supreme Court and Bundesverfassungsgericht: Die Bedeutung des United
States Supreme Court für die Errichtung und Fortentwicklung des Bundesverfassungsgerichts (Springer
2007).
The Overall Picture 151
introduction to this chapter, into six (or five plus one) distinct jurisdictions: BGH,
BVerwG, BFH, BAG, BSG, and the BVerfG. All this results in a richness of
horizontal as well as vertical comparisons in matters of interpretation of federal
law, which, at the same time, becomes a type of interpretative competition: various
approaches from different courts and levels are evaluated, approved, or rejected.
This in turn may diminish the need for working comparatively, as a sufficiently
critical mass of competing visions and solutions is always readily available within
the system.
8
Czech Republic
Comparative reasoning in the Czech supreme courts offers an intriguing study on

gaps. First, there is the gap between the extant legal theories of legal interpretation,
in which the use of comparative arguments in the process of legal interpretation
appears to border on the irrelevant, and the actual practical use of comparative law
in the highest courts, especially in the Constitutional Court and the Supreme
Administrative Court, which are not massive, but surely not entirely negligible.
Secondly, there is the gap between the quantity and the quality of the use of
comparative arguments in the Constitutional Court (Ústavní soud—CÚS) and the
Supreme Administrative Court (Nejvyšší správní soud—CNSS), on the one hand,
and the Supreme Court (Nejvyšší soud—CNS), on the other. In the case law of the
former two jurisdictions, there are traces of comparative inspiration; before the
latter, comparative arguments are non-existent.
Both of these gaps have been caused by the legal transformation the Czech
Republic, similarly to other countries in Central Europe, underwent after 1989.
They have, however, also pre-1989 roots. First, the limited world of post-
communist legal theory has been lagging behind the spontaneous and massive
evolution of the law, unable to conceptualize and to provide theoretical narrative
and justification for the turbulent legal practice. In contrast to established legal
systems therefore, in terms of comparative inspiration, there has been much more
of actual doing it than the theoretical conceptualizing about it. Second, the internal
differentiation between the three Czech highest jurisdictions in their approach to
comparative law confirms that the age of the court matters, together with its
composition. An institution newly established within the legal system, such as a
newly created constitutional court, is likely to look for external support outside of
the extant normative system.
1. The Doctrine
From a review of Czech and (Slovak1) standard textbooks on legal theory and
interpretation, one would doubt that there is anything like comparative interpretation
1 Both countries, ie the Czech Republic and the Slovak Republic, were united in one state from
1918 until 1992. In spite of the passage of over twenty years since the separation of the two countries,
the state of legal theory and debates in both countries remains roughly the same, also due to the
The Doctrine 153
of law at all. In most works, comparative reasoning does not appear amongst
recognized methods of legal interpretation.2 A minority of works put it amongst
‘additional’ or ‘supplementary’ methods.3 There appears to be only one textbook
which actually mentions comparative interpretation as one of the standard methods
of legal interpretation.4
More recent works by younger scholars, relying extensively on German and
Austrian traditional works on legal theory, put comparative reasoning amongst
other means of ‘extra-legal’ argumentation, together with other non-legal norma-
tive systems (morality, religion) and the reasoning out of empirical facts.5 The role
of comparative analysis is seen as auxiliary only: the result reached must be reasoned
and must be defendable on the basis of one of the recognized domestic methods of
legal interpretation. The inspiration drawn from foreign sources must be, more-
over, compatible with the wording and the spirit of the Czech law.6
Compared with the scholarly debates on methodology in any of the West
European legal systems discussed in previous chapters, the Czech (and Slovak)
debates on legal theory and interpretation are very meagre. In most of the theo-
retical works quoted above, the entire debate on the methodology of the interpret-
ation of the law runs to just several pages, with little or no examples given. As far as
the substance is concerned, most of the works content themselves with a somewhat
vulgarized version of Savigny’s four traditional methods of interpretation,7 almost
entirely omitting any jurisprudential developments on the European Continent of
the second half of the last century, not to speak of the world of the common law.
There has been so far only one call for departure from the theoretical irrelevance
of comparative methodology in the judicial forum. In a series of articles published
several years ago,8 Zdeněk Kühn spoke strongly in favour of larger and more
objective use of comparative methodology before the CÚS. He concluded that
extensive and on-going Slovak reliance on Czech legal scholarship. The ensuing description of the
doctrine can thus be said to represent both Czech as well as Slovak scholarly writings.
2 See, eg: J Harvánek and others, Teorie práva (Theory of Law) (Masarykova univerzita 1998);
similarly a Slovak textbook by J Prusák, Teória práva (Právnická fakulta UK 1999). Quite surprising is
the absence of comparative methodology qua a method of interpretation in V Knapp, Teorie práva
(CH Beck 1995). Professor Viktor Knapp was the leading figure in the limited Czech (communist)
science of comparative law and the author of the only Czech general textbook on comparative law
published in the last fifty years worth mentioning: V Knapp, Velké právní systémy: Úvod do srovnávací
právní vědy (The Grand Legal Systems: An Introduction into the Comparative Legal Science) (CH
Beck 1996).
3 See, eg: A Gerloch, Teorie práva (3rd edn, Aleš Čeněk 2004) 151, who takes comparative
reasoning for a type of ‘non-standard’ interpretation limited to cases when the domestic legislation
has its roots in a foreign model. I Telec, Metodika výkladu právních předpisů (The Methodology of
Interpretation of Legislation) (Doplněk 2001) 38, also suggests that comparative reasoning is only an
‘auxiliary’ method of interpretation which is limited to instances where Czech law was adopted on the
basis of a foreign (international) model.
4 L Kubů and others, Teorie práva (Linde 2007) 122–3.
5 F Melzer, Metodologie nalézání práva: Úvod do právní argumentace (The Method of Law Finding:
An Introduction into Legal Reasoning) (CH Beck 2010) 194–6.

6 Melzer (n 5) 195 and 196.
7 See ch 7, section 2.2.a.
8 See especially two articles: Z Kühn, ‘Srovnávací metoda výkladu práva ve srovnávací perspektivě’
(Comparative Method of Interpretation in a Comparative Perspective) (2002) 141 Právník 1071 and
154 Czech Republic
The comparative reasoning excludes by definition any binding role of foreign law.
Foreign law must be perceived as being endowed with the strength of its arguments,
with the strength of its persuasiveness. ( . . . ) The use of comparative reasoning is within
the discretion of the court, on the other hand, I am of the opinion that at least in the
highly morality-loaded and constitutionally controversial cases the court must take into
consideration foreign experience (typically in cases of constitutionality of abortion).9
Kühn’s work was inspired by the debate on the use of comparative jurisprudence in
the English-speaking world. He later applied the standards of analytical detail and
depth he suggested to one decision of the CÚS concerning the Czech lustration
laws. This resulted in a critical article about the selectivity and insufficient degree of
comparative analysis of the CÚS in lustration laws case, which Kühn called ‘a
paradigm of bad comparative argumentation’.10 The objections raised against the
reasoning of the CÚS in that case were numerous, ranging from unjustified
selectivity and omission of important foreign inspiration to the use of wrong and
outdated case law. The answer was a disapproving reply from the reporting judge in
the case, Jiří Malenovský.11 A rejoinder by Kühn was the final point in the public
part of the debate.12
The current doctrinal framework in the Czech Republic as far as the use of
comparative arguments by courts is concerned is therefore somewhat polarized.
The traditional legal theory either does not consider comparative reasoning to be a
method of statutory interpretation at all or it perceives it as just an extraordinary
and marginal method. On the other hand, the efforts to introduce scholarly
requirements from writings of Anglo-American provenience proved to be problem-
atic, as these requirements are in fact quite distant from the practice or potential in
post-communist judicial practice. In sum, there is hardly any academic conceptual-
ization of comparative reasoning by courts in the mainstream Czech doctrine.
2. Judicial Views
In the Czech Republic (as well as Slovakia, for that matter), the judicial tradition
inherited already from the Austrian-Hungarian Empire, and even deeply en-
trenched in communist times, is that judges rarely write and speak extra-judicially,
unless they happen to be at the same time also academic lawyers (typically a
member of a supreme or constitutional court who is a law professor at the same
Z Kühn, ‘Srovnávací právo v judikatuře středoevropských ústavních soudů’ (Comparative Law in the
Case-law of Central European Constitutional Courts) (2003) 11 Časopis pro právní vědu a praxi 108.
9 Kühn, ‘Srovnávací právo v judikatuře středoevropských ústavních soudů’ (n 8).
10 Z Kühn, ‘České lustrační rozhodnutí: role srovnávacího práva a nedostatky v soudcovské argumen-
taci’ (The Czech Lustration Decision: The Role of Comparative Law and the Deficiencies of Judicial
Reasoning) in O Novotný (ed), Pocta V. Mikulemu (Liber Amicorum V Mikule) (ASPI 2002).
11 J Malenovský, ‘Poznámka k jedné bizardní reflexi judikatury Ústavního soudu’ (A Note on One
Bizarre Reflection of the Case-law of the Constitutional Court) (2003) 142 Právník 184.
12 Z Kühn, ‘Ještě jednou krátce k českému lustračnímu rozhodnutí’ (Once More Briefly on the
Czech Lustration Decision) (2003) 142 Právník 932.

Judicial Views 155
time). The judicial views presented in this section are therefore those coming from
the judicial forum.
The pronouncements on the role of comparative methodology in the judicial
forum are varied and somewhat polarized. Looking at the case law of the three high
courts studied, one finds, especially in the case law of CÚS, considerable differ-
ences. In some cases, comparative inspiration was venerated as the one argument for
a change in the law. In others it was deemed irrelevant.
A unique example of exaggerated stress laid on comparative arguments is a
decision in which the CÚS invoked comparative inspiration in order to hold that
the right to compensation for unlawful detention should comprise also immaterial
damage.13 This approach was previously repeatedly rejected in the case law of the
Czech courts (including the CNS), the legislature, the civil law scholarship, and
once before, by the plenary CÚS itself.14 However, after a sketchy review of the
decisions of some other national European courts (Germany, Austria, Greece,
Denmark, the Netherlands) and some of the case law of the ECtHR relating to
Article 5 (5) European Convention, the first chamber of the CÚS nonetheless
concluded that:
Irrespective of the manner in which the issues of damages is approached by the
domestic legislator, case law of the ordinary courts and the Constitutional Court,
and also the domestic doctrine of civil law, it is necessary, in the area of domestic
application of the European Convention, to proceed from the notion of damage in the
way it is conceptualised by other European constitutional and supreme courts, in
whose case law is rooted also the case law of the European Court of Human Rights.15
The argument employed thus appeared to be on the borderline between the
mandatory foreign, which would be the case law of the ECtHR, and the non-
mandatory foreign, which would be represented by the comparative argument with
respect to other European jurisdictions’ approach to immaterial damage. The
respective weight of these elements in the reasoning of the CÚS was, however,
not readily apparent.16
The opposite view, rejecting any comparative inspiration analysis, in the par-
ticular case non-binding recommendations of the International Labour Organiza-
tion, was put by the CÚS in another decision in the following manner:
The recommendations [of the ILO] can never constitute a frame of reference for the
Constitutional Court when reviewing constitutionality of statutes. Neither will they
become such a frame in case when the Constitutional Court uses the richness of
13 13 July 2006, I. ÚS 85/04 (immaterial damage). All further quoted decisions of the CÚS can be
found online in the Court’s database at <http://www.nalus.usoud.cz>.

14 4 May 2005, Pl. ÚS 16/04 (damage caused by public authorities).
15 13 July 2006, I. ÚS 85/04.
16 See M Bobek, ‘Ústavní soud: Má srovnávací argumentace přednost před českým zákonodárcem,
judikaturou i doktrínou anebo je císař nahý?’ (Constitutional Court: Is a Comparative Argument to be

Given Priority over the Czech Legislator, Case law and Doctrine or is the Emperor Naked?) (2006) 12
Soudní rozhledy 415.
156 Czech Republic
thought contained in these sources as inspiration or as the basis for comparative
reasoning in interpreting the norms of Czech constitutional law.17
The fact that ILO recommendations are not a binding source for the Czech
constitutional review is beyond question. Why, however, they became flatly
rejected as a broader source of inspiration and interpretative aid to the CÚS
remained further unexplained.
Both cases represent extremes and ought to be read in their respective contexts.
The first case represented an attempt of the first senate of the CÚS to depart from
the traditional approach within the domestic legal forum, which was united in the
rejection of the idea of compensation being paid for immaterial damage. The harsh
words chosen by the senate were to express the disagreement with the overall
negativist approach of the Czech legal circles towards immaterial damage. With
everyone (including the CÚS sitting in plenary) within the national legal system in
open disagreement, the only, and constitutionally rather questionable, option open
to the first senate was to seek to invoke inspiration from other European systems in
which the notion of immaterial damage is interpreted more broadly. In the other
case, the broad judicial pronouncement as to the normative irrelevance of ILO
recommendations represented rather a poorly framed rejection of non-binding
international documents serving as a yardstick for the review of (national) consti-
tutionality. On the whole, however, a clearer and unifying methodological state-
ment in the case law of the CÚS is missing. A lot will thus depend on the approach
of the respective reporting judge in the case and the degree of reliance the individual
judge decides to put on any potential comparative argument.
From the two Czech supreme jurisdictions, it is only the CNSS which passed any
general statements on the role of comparative methodology in its reasoning. The
CNSS adopted the following standard pronouncement concerning its view of
statutory interpretation which it keeps repeating in its decisions in the form of a
block citation:
The Supreme Administrative Court notes that the recourse to the literal (grammatical)
interpretation is usually not sufficient for a satisfactory interpretation of a legal norm. It
is necessary to use also other methods of interpretation (teleological, logical, historical,
systematic, comparative etc.). The final interpretation of a given norm is an intersec-
tion of the above-mentioned methods.18
The CNSS thus perceives comparative analysis as one of the standard methods of
interpretation, which, together with other methods, helps to overcome the often
textual and mechanical interpretation of the law by public authorities. Comparative
arguments are thus welcomed by the CNSS. They are, however, clearly seen as just
an additional support to a decision made already on the basis of Czech law.19
17 23 October 2006, Pl. ÚS 61/04 (collective bargaining) [39].

18 See, eg: 21 August 2003, 5 A 116/2001–46; 11 February 2004, 7 A 72/2001–53; 26 October
2005, 1 Afs 86/2004–54. All the decisions of the CNSS quoted are available online at <http://www.
nssoud.cz>.
19 Cf, eg: 4 October 2007, 9 Afs 52/2007–62 or 5 November 2009, 1 Afs 60/2009–119.
The Practice 157
On the whole, looking at the judicial pronouncements, and in particular the

polarized views of the members of the CÚS, as far as the role of comparative
reasoning in judicial decision-making is concerned, one sees how the failure of legal
scholarship in devising methodological guidelines and defining the limits of the
acceptable interpretative approaches carries over into the courts. Scholarship and
courts are joint vessels, certainly in the European Continental systems. It has
historically been the role of legal scholarship to elaborate, also on the basis of the
case law, general guidelines and thus help to build up a consensus in the legal
community as to what is an acceptable approach. The failure of the legal scholar-
ship in this respect spills over into the courts, as they are left without guidance: if
anything20 goes in the doctrine, then anything goes in courts.
3. The Practice
3.1. Ústavní soud
The Czech Constitutional Court (CÚS) is provided for in chapter 4 of the Consti-
tution of the Czech Republic.21 Amongst its competences are the abstract review of
constitutionality, which may be initiated by members of either chamber of the
Parliament, the President of the Republic, and any court of general jurisdiction.
The most significant competence of the CÚS in quantitative terms is, however, the
power to hear constitutional complaints lodged by individuals claiming that their
constitutionally protected rights have been violated as a result of a decision,
measure, or some other action by public authority. The definition of public
authority includes also courts. This means that the CÚS is also competent to
hear constitutional complaints against final decisions of Czech courts, including
both supreme jurisdictions. This turns the CÚS into the genuine supreme jurisdic-
tion within the system.22
In the time period 2001–2005, on a very generous reading, there were about
forty decisions in which the CÚS referred,23 in a way or another, to foreign case
20 Or nothing at all, ie the doctrine is silent on an issue which the courts simply cannot omit or
neglect.
21 Constitutional Law no 1/1993 Coll. The detailed regulation of the composition and proceedings
before the CÚS are provided for by law no 182/1993 Coll., on the Constitutional Court. Further see
eg: P Holländer and M Hofmann, ‘Die Verfassungsgerichtsbarkeit in der Tschechischen Republik’ in
O Luchterhandt and others (eds), Verfassungsgerichtsbarkeit in Mittel- und Osteuropa: Teilband I
(Nomos 2007).
22 According to the (internal) statistical data of the CÚS, in the period 2004–2008, about 35 per
cent of the CÚS’s docket consisted of constitutional complaints against the final decisions of either
CNS or CNSS. In the other 60 per cent of cases, the CÚS was reviewing final decisions of other Czech
courts, typically the appellate courts. This means that in about 95 per cent or more of its judicial
activity, the CÚS had been acting as the de facto supreme court. I am much obliged to Mr Ivo Pospíšil,
Director of the Analytical Department of the CÚS, and Mr Tomáš Langášek, Secretary-General of the
CÚS, for providing me with this detailed statistical breakdown (in personal email correspondence of 20
March 2007, 17 August 2009, and 20 April 2010 respectively).
23 Cited by case numbers only (all cases can be found online at <http://nalus.usoud.cz>): Pl. ÚS 3/
2000; Pl. ÚS 5/2000; Pl. ÚS 42/2000; Pl. ÚS 5/01; Pl. ÚS 9/01; Pl. ÚS 38/01; Pl. ÚS 39/01; III. ÚS
158 Czech Republic
law, legislation, or foreign legal writings. The quality and the precision of work with
foreign law varied considerably. It ranged from few exact reference to case law and
legal scholarship to dubious and unspecified references to principles known to
‘foreign democratic legal systems’;24 ‘a number of foreign democratic countries’;25
values shared by ‘the Member States of the EU and other developed countries of the
Western Europe’;26 further unreferenced ‘principles of European tort law’;27 or ‘the
founding principles of the contemporary Euro-Atlantic civilization’,28 and so on.
Yet another type of vague reference is represented by allusions made to specific
(named) countries, but without any reference to any concrete foreign legal provi-
sions or other authority in the legal systems of the countries invoked. It would just
be stated that legal position A is current in countries X, Y, Z, whereas legal position
B is to be found in countries L, M, and T.29
Generally speaking, there may be two types of reference to a foreign solution.
First, the domestic decision can pick up and rephrase the substantive reasoning
used in the foreign model. In such a scenario, the argument taken from a foreign
jurisdiction acquires independent argumentative value: it is a free-standing argu-
ment which merely happened to come from abroad. Secondly, the foreign argu-
ment and the foreign solution will not be reproduced; there is just a reference to
country X or the decision of the supreme/constitutional jurisdiction in country X,
without the substantive reasoning being recounted, however. In the latter scenario,
the argument is in fact just an appeal to a foreign institutional authority, with no
substantive reasoning on its own.
In the vast majority of cases in which the CÚS referred to anything foreign that
was non-mandatory, the reference was just an appeal to authority in the latter sense.
The invoked authority came from two directions: either from the ‘old’ Member
States of the EU before the 2004 Enlargement or the USA, or from the neighbour-
ing countries (Poland, Slovakia, and Hungary). An appeal to the Western democ-
racies, in a way to a club one politically wishes to approximate and belong to, is an
obvious source of external authority. In the political climate after 1989, their
authority was in a way granted and did not require any further justification. The
appeal to neighbouring countries is of a different character: here, the authority is
not granted automatically for any legal questions. It is just problem-related, a kind
of ‘common transition problems’ authority, which is accepted in situations where
256/01; Pl. ÚS 6/02; Pl. ÚS 7/02; Pl. ÚS 41/02; Pl. ÚS 12/02; Pl. ÚS 32/02; Pl. ÚS 34/02; Pl. ÚS 24/
02; Pl. ÚS 36/02; Pl. ÚS 42/02; II. ÚS 797/02; Pl. ÚS 10/03; III. ÚS 183/03; I. ÚS 367/03; I. ÚS
625/03; Pl. ÚS 11/04; Pl. ÚS 15/04; Pl. ÚS 16/04; Pl. ÚS 28/04; Pl. ÚS 34/04; Pl. ÚS 43/04; Pl. ÚS
61/04; Pl. ÚS 63/04; Pl. ÚS 73/04; III. ÚS 239/04; III. ÚS 323/04; I. ÚS 554/04; IV. ÚS 29/05; Pl.
ÚS 9/05; Pl. ÚS—st. 20/05.
24 1 April 2004, II. ÚS 797/02; 13 January 2005, III. ÚS 323/04 (both cases concerned the
constitutionality of the use of undercover police agent).

25 15 November 2002, Pl. ÚS 36/02 (election deposits).
26 16 October 2001, Pl. ÚS 5/01 (milk quotas).
27 4 May 2005, Pl. ÚS 16/04 (damage caused by public authorities).
28 15 March 2005, I. ÚS 367/03 (Vondráčková).
29 Cf, eg: 12 March 2003, Pl. ÚS 38/01 (golden shares) or 18 July 2002, Pl. ÚS 7/02 (law on courts
and judges).
The Practice 159
these countries have faced similar transition problems to those which are being
tackled in the Czech Republic.30
References to foreign law or scholarship were often invoked in parallel to the
references to the case law of the ECtHR. The typical style of reasoning in such cases
was that ‘interpretation X is required by the case law of the ECtHR and, addition-
ally, that the same solution would also be reached in other democratic Western
states, such as the jurisdictions Y and Z’. In some instances, certain confusion
between these two types of mandatory and non-mandatory foreign law was visible
in the reasoning of the CÚS.31
As far as the countries referred to are concerned, the uncontested champion in
the number of direct references is the German Federal Constitutional Court
(Bundesverfassungsgericht). Second place is occupied by other German supreme
courts, namely the Federal Supreme Court (Bundesgerichtshof) and the Federal
Administrative Court (Bundesverwaltungsgericht). This confirms the considerable
impact German law and especially the constitutional judiciary has had and in fact
continues to have on CE legal systems. In the vast majority of cases, if there is any
comparative reference made, it is either only to German law or to German law and
other legal systems.
Amongst the other countries used as source of inspiration were Switzerland,32
Poland,33 United States,34 Slovakia,35 Italy,36 and occasionally also other coun-
tries.37 There are surprisingly few references to Austrian law and the Austrian
courts.38 This absence is, at first glance, rather striking if one takes into account
hundreds of years of shared statehood and legal tradition. This may, however, be
explained, especially in the area of constitutional and public law, by the fact that the
Austrian system after the Second World War remained faithful to the original self-
restrained Kelsenian model of constitutional justice. This vision is quite distant
30 Cf, eg: 14 July 2005, Pl. ÚS 43/04 (judicial salaries), referring to decisions of the Polish Tribunał
Konstytucyjny; 17 July 2006, Pl. ÚS 18/06 (recall of the Chief Justice), referring to Slovakia and the
attempts to remove the Chief Justice of the Slovak Supreme Court in 2000.
31 Example given in n 13.
32 25 October 2005, Pl. ÚS—st. 20/05 (right to interpreter).
33 25 April 2005, Pl. ÚS 11/04 (review of the decisions of the National Security Agency); 14 July
2005, Pl. ÚS 43/04 (judicial salaries).

34 15 March 2005, I. ÚS 367/03 (Vondráčková); 30 October 2002, Pl. ÚS 39/01 (sugar quota I).
35 25 April 2005, Pl. ÚS 11/04 (review of the decisions of the National Security Agency).
36 8 March 2005, Pl. ÚS 50/04 (sugar quota II); 3 February 1999, Pl. ÚS 19/98 (ne bis in idem).
37 Belgium, Denmark, Sweden, Finland, and others. These references tend to be, however,
enumerative only and made when conducting a broader review of the situation in a plurality of states,
normally in the type of a demonstrative list of jurisdictions where a certain legal solution is adopted—
cf, eg: 24 January 2001, Pl. ÚS 42/2000 (proportionate electoral system), where the reference to
numerous Western countries is made in order to demonstrate that the requirement of 5 per cent of
votes in a popular election for political parties to enter the parliament is common to many systems of
representative democracy.
38 Amongst the very few, see eg: 6 February 2007, Pl. ÚS 38/06 (damage caused by public
authority). In some cases, Austrian law serves as a point of historical reference. In these cases, however,
the interpretation method can be said to be historical rather than comparative—see, eg: 30 November
2004, Pl. ÚS 15/04 (order fines). If considered, Austrian law appears typically within the intra-
Germanic type of comparison, ie in instances when Germany, Switzerland, and Austria are being
mentioned at the same time.
160 Czech Republic
from the active and, in a way, expansionist New Constitutionalism, developed by
the German Bundesverfassungsgericht and taken on board by the new democracies in
Central Europe. The judicial output of the Austrian Verfassungsgerichtshof thus
appears not to be an attractive export product today.
Reference to the law and case law of the EU in the period before Accession
(before 1 May 2004) also falls into the category of voluntary references. Although it
was not being obliged to do so, the CÚS occasionally undertook voluntary
approximation towards EU law. In a significant pre-Accession case, for instance,
the CÚS recognized that
Primary Community law is not foreign law for the Constitutional Court, but to a wide
degree it penetrates into the Court’s decision making – particularly in the form of
general principles of European law.39
The rhetoric of the CÚS vis-à-vis EU law before Accession was thus one of shared
values and principles.40 Finally, quite unique amongst the other references was one
instance of argumentative use of the Lando’s Principles of European Contract Law
as the basis for inferring a principle of the interpretation of contracts.41
The fact that the majority of cases in which reference to foreign sources was made
are plenary court (full court) cases, typically concerning an abstract review of
constitutionality, is not surprising. Plenary disputes tend to be high-profile cases,
by their nature political disputes, where, if seized by a group of members of one of
the chambers of Parliament or other privileged applicants, the CÚS turns into a de
facto third chamber of Parliament.42 It is not uncommon for the opposition which
has lost in the Parliament to challenge an adopted statute act before the
CÚS. Furthermore, the former president Václav Havel used to call on the CÚS
in cases when his presidential veto had been reversed by the Chamber of Deputies
or in other cases in which he harboured doubts about the constitutionality of a
statute he had nevertheless signed.
Comparative arguments did not serve only as source of inspiration or legitimacy
for the majority opinion, but also as a discursive element for dissenters. In some
cases, dissenting judges raised a comparative law issue to express dissent from the
majority view. This happened on two levels: first, the minority differed from
majority in the interpretation of the comparative material. Second, the comparative
law issue was raised only by the minority, but did not appear in the majority
opinion.43
39 16 October 2001, case no Pl. ÚS 5/01 (milk quotas).

40 Cf, eg: 29 May 1997, III. ÚS 31/97 (Škoda Auto). See generally: M Bobek and Z Kühn, ‘What
About That “Incoming Tide”? The Application of EU Law in the Czech Republic’ in A Łazowski (ed),
The Application of EU Law in the New Member States: Brave New World (TMC Asser 2010).
41 14 April 2005, I. ÚS 625/03 (interpretation of contracts).
42 See generally with respect to the Western European constitutional courts: A Stone Sweet,
Governing with Judges: Constitutional Politics in Europe (OUP 2000) 61–91.

43 Cf, eg: 26 January 2005, Pl. ÚS 73/04 (fair election campaign). In this decision, comparative
arguments were extensively discussed by the parties but not echoed in the majority opinion. Three out
of four dissenting opinions (delivered by Justices Wagnerová and Janů and by Justice Výborný),
however, picked up on some comparative law issues to support their dissent. See also decision of 4 May
The Practice 161
Finally, in quantitative terms, the open use of comparative arguments in the

decisions of the CÚS played a minor role. The CÚS decides annually about 3000
cases on average.44 In the period in question, there were about forty cases in which
the CÚS made any reference to a foreign non-mandatory authority. This means
that the CÚS openly used comparative arguments in slightly more than 1 per cent
of total cases decided. These numbers could be, however, further refined. The
majority of instances when the CÚS took the extra effort to look for comparative
arguments were plenary cases, ie cases concerning abstract review of the constitu-
tionality of statutes decided by the full court. The number of plenary cases decided
annually is on average 50 cases. If one were to calculate the instances of the use of
comparative reasoning in this context, the extent of the use of comparative
reasoning rises to approximately every tenth plenary case decided.
If viewed qualitatively in this way, it is clear that the instances in which the CÚS
uses comparative reasoning tend to be important constitutional issues. They may
not necessarily be complex in terms of the law, but they are contentious as far as the
value choice and the constitutional solution are concerned. It is in these cases where
the CÚS may feel the need to look into foreign solutions, not necessarily just for
inspiration, but also for additional argumentative support.
There are finally instances in which the CÚS might have been inspired by
foreign model but did not expressly attribute such inspiration to its original source.
There are examples in the past decisions of not just the CÚS, but also of other
constitutional courts in the CE region,45 which have, especially in the initial
periods of their function,46 copied entire doctrines of constitutional review with-
out, however, providing any reference to their, typically German, origins. An
example of this from the older case law of the CÚS may be the idea of radiation
of constitutional rights into private relationships (Austrahlungswirkung), which
2005, Pl. ÚS 16/04 (immaterial damage) and the dissenting opinion of Justice Wagnerová. A further
example is, for instance, the decision of 15 September 2005, III. ÚS 183/03, which is interesting for
the comparative law dissent within a small chamber (three justices).
44 Overall statistics are accessible online at <http://www.usoud.cz>. I am again obliged to Mr Ivo
Pospíšil, Director of the Analytical Department of the CÚS, and Mr Tomáš Langášek, Secretary-
General of the CÚS, for providing me with a more detailed statistical breakdown (in personal email
correspondence of 20 March 2007, 17 August 2009, and 20 April 2010 respectively).
45 Another example is provided by the former president of the Hungarian Constitutional Court, Mr
L Sólyom, who admitted that the Hungarian Constitutional Court copied German case law without,
however, expressly citing it. See generally L Sólyom, ‘Anmerkungen zur Rezeption auf dem Gebiet der
wirtschaftlichen und sozialen Rechte aus ungarischer Sicht’ in JA Frowein and T Marauhn (eds),
Grundfragen der Verfassungsgerichtsbarkeit in Mittel- und Osteuropa (Springer 1998) 213–28 or L
Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional
Court (The University of Michigan Press 1999) 4–5.
46 The first Czech CÚS with the term of office from 1993 until 2003 obtained inspiration in
particular from the German law presumably on a number of occasions, but openly acknowledged it by
a reference in its decision only rarely. The inspiration frequently came from former émigré lawyers
sitting on the first CÚS—see eg: I Pospíšil and E Wagnerová (eds), Vladimír Klokočka Liber Amicorum:
In memoriam emeritního soudce Ústavního soudu (Vladimír Klokočka Liber Amicorum: In the Memory
of a Former Judge of the Constitutional Court) (Linde 2009) 9, 253, 264, 283.
162 Czech Republic
made its appearance in the decisions of the CÚS in late 1990s47 without ever being
referenced to Lüth48 and the other key decisions of the Bundesverfassungsgericht, in
which it was originally established.
3.2. Nejvyšší soud

The Czech Supreme Court (CNS) is the ordinary supreme jurisdiction in the
Czech Republic, deciding on revisions in civil, commercial, and criminal matters. It
is always a third instance court. Its review is limited to points of law only.49
The report on the use of comparative reasoning in the case law of the CNS is
rather short: there is almost nothing to report. In the period 2001–2005, there
appear to be just two cases in which the CNS made at least a passing reference to
something which could be, with some generosity, qualified as a non-mandatory
foreign source.
The first one was a civil case50 which concerned the question as to whether or not
the administrator in bankruptcy shall include in the inventory of property also real
estate in respect of which she has doubts whether it actually belongs to the bankrupt
company. The CNS stated that the administrator is obliged to include every known
property, even if its ownership is disputed, and that the person who claims the
ownership to the property in question shall file a vindication action in the court
against the administrator. While stating this, the CNS noted that filing, in a similar
scenario, a vindication action was the standard solution not only in past systems of
bankruptcy law in the Czech Republic, but that it is also generally known in foreign
legal systems. The CNS provided, however, no reference as to what foreign legal
systems it had in mind.
The second instance was a criminal case.51 It concerned the question whether or
not Article 4 of Protocol No 7 to the European Convention precludes parallel
criminal and administrative punishment for the same act. In this respect, the CNS
noted, again without providing any precise reference for its suggestion, that a
number of signatory parties to the Convention (namely Austria, France, Germany,
and Italy) made a reservation to this provision, in which they tried to limit the scope
of application of the said Article.
The fact that comparative reasoning finds little favour in the decisions of the
CNS was also evidenced by cases in which the parties raised comparative argu-
ments, but received no reply with respect to them from the CNS. Such type of
arguments, typically invoking German law or case law, can be found in the
47 21 January 1999, III. ÚS 257/98 and further 27 May 1999, III. ÚS 93/99 or 9 November 2000,
III. ÚS 4/97.
48 BVerfGE 7, 198.
49 The organization and structure of the CNS is provided for by law no 6/2002 Coll., Act on
Courts and Judges. The review competence is laid down in detail in the various codes of procedure
(civil and criminal).
50 25 March 2003, 29 Odo 560/2001. All the decisions of the CNS quoted can be located at
<http://www.nsoud.cz>.
51 22 July 2004, 11 Tdo 738/2003. The same block citation was later repeated in a number of other
decisions of the CNS, for instance 5 Tdo 166/2006 or 5 Tdo 527/2008.

The Practice 163
reasoning of the court in the section which recounts, frequently at quite some
length and detail, the arguments of the parties. These were, however, not later
addressed in any way by the CNS itself in the reasons given for the decision.52
The absence of any comparative reasoning in the decisions of the CNS can be
placed into a broader context, within which the CNS proved to be hesitant as far as
the use of persuasive authority generally was concerned. Unlike the CÚS or the
CNSS, the CNS for instance also rejected the use of EU law prior the Czech
accession to the EU as a sort of non-mandatory comparative argument. The judicial
logic of the CNS appeared to be bipolar: a source is either binding or it is irrelevant.
It is evident that if persuasive arguments are not recognized as relevant at all, there is
no place for any comparisons.
A civil decision from the year 2000 provides a good example of such strange
bipolar notion of legal sources. In a decision53 dealing with the validity of an
agreement between a consumer and a distributor of expensive pottery, the con-
sumer argued that the agreement was contrary to the general clause on good morals,
as the distributor sold him exceptionally expensive pottery under very harsh
conditions. The consumer argued also with reference to the law of Western
countries and EU directives on consumer protection. He suggested that the CNS
ought to take these into account, as Western European countries, in contrast to the
Czech Republic, have a long experience in dealing with consumer agreements. The
CNS rejected this argument. It did not consider comparative arguments drawn
from EU law as potentially capable of filling the general clauses on good morals.
The CNS opined:
[T]he validity of the agreement made between the parties on August 31, 1993 must be
decided according to the then valid law, as both lower courts did. In contrast, laws and
directives valid in the countries of the European Community are not applicable, as the
Czech Republic was not (and still is not) a member of the Community, and that is why
the Czech Republic is not bound by these laws. The binding force of the rules to which
the appellant refers cannot be inferred from any provision of the [the Czech Associ-
ation Agreement], as the court of appeal concluded.54
52 Examples include the decision of 7 March 2007, 29 Odo 1332/2005, where the applicants
referred to German and Austrian laws on the protection of minority shareholders (similarly in 29 Cdo
4712/2007). In the decision of 28 November 2007, 32 Cdo 1044/2005, the respondent invoked
English and US law as far as legal immunity of arbitrators was concerned. In the decision of 1 March
2007, 29 Odo 1662/2005, the applicant referred to the case law of the German Bundesgerichtshof with
respect to the protection of minority shareholders in cases of an increase of capital. In the decision of 24
June 2008, 29 Odo 1016/2006, while restating the course of the previous procedure before the lower
courts, the CNS confirmed a decision of a lower court which found comparative arguments put
forward by the applicant and referring to Austrian laws as irrelevant. Comparative arguments were also
raised in cases when the revision was declared inadmissible, ie when the case was not decided on merits
(eg: 8 June 2004, 29 Odo 997/2003 or 14 April 2005, 29 Odo 528/2003).
53 12 December 2000, 25 Cdo 314/99.
54 12 December 2000, 25 Cdo 314/99. However, a later (however isolated) decision by a different
chamber of the CNS took an EU directive into account as the model for the Czech approximated
statute even before Accession—cf 8 April 2003, 21 Cdo 2078/2002.
164 Czech Republic
On the whole therefore, and taking into account the avalanche of cases annually
decided by the CNS,55 it can be concluded that comparative reasoning is as good as
non-existent in its practice.
3.3. Nejvyšší správní soud

The Czech Supreme Administrative Court (CNSS) is the highest authority in
matters of administrative justice. It decides on cassational complaints against the
decisions of regional courts, which are the administrative courts of first instance.56
In most of its judicial activity, the CNSS reviews decisions of regional courts in all
matters of administrative law (taxation, customs, social security, environment,
asylum, and other areas).
The CNSS is a relatively new institution; notwithstanding the fact that its
creation was already foreseen in the 1993 Constitution, it was not established
until 1 January 2003. Taking into account this fact, the representative period for
which data have been collected was the years 2003–2007. In this period, the CNSS
expressly referred to foreign law in about twenty cases.57 In the period between
2005 and 2007, there are, furthermore, additional dozens of cases in which the
CNSS has used EU law as non-mandatory authority for deciding in cases in which
the facts lay before the Czech accession to the EU and in which EU law and the case
law of the Court of Justice were not yet applicable.58
The use of comparative analysis by the CNSS differs from that of the CÚS in its
style and its greater specificity. There tend to be less vague allusions to ‘European
standards’ or ‘shared Western values’. Instead, if any foreign inspiration is being
referred to, it tends to be a specific reference to a foreign judicial decision,
legislation, or scholarly writing. The difference might be explained by the different
kind of information the administrative court is likely to look for. This typically is a
more ‘technical’ solution to a given problem rather than the existence of an abstract
and broadly asserted constitutional principle or a value.
55 In the period 2001–2005, the CNS decided annually on average about 2000 criminal cases and
5500 civil and commercial cases combined. The annual output of the entire court thus oscillated
between 7000 and 8000 cases. Detailed statistics are available online at <http//:www.nsoud.cz>.
56 The composition and the competences of the CNSS are provided for by the law no 150/2002
Coll., the Code of Administrative Justice.

57 Cited by case numbers only (all cases can be found online at <http://www.nssoud.cz>): 2 Azs 5/
2003–46; 2 A 12/2002–503; 1 Ao 1/2005–98; 2 Ans 1/2005–57; 2 As 31/2005–1; 4 Ad 71/2006–

83; 2 Azs 66/2006–52; 5 Azs 50/2007–71; Vol 50/2006–53; Vol 51/2006–40; Vol 65/2006–52; 5 As
36/2006–48; 2 Afs 101/2005–67; 1 Afs 91/2006–101; 8 As 51/2007–67; 9 Afs 52/2007–62; 2 As 78/
2006–2; 3 Ao 1/2007–44; Pst 1/2005–53; 5 As 19/2006–59; 4 Ads 98/2005–80; 9 As 18/2007–109;
1 Afs 72/2006–58.
58 Amongst others: 2 Afs 92/2005–45; 6 As 19/2006–62; 9 Afs 5/2007–70; 2 Afs 178/2005–64; 1
Azs 37/2006–64; 2 Azs 66/2006–52; 2 As 63/2006–63; 2 As 78/2006–64; 1 As 13/2007–63; 5 As 19/

2006–59; 1 As 39/2006–55; 1 Ao 1/2006–74; 1 As 3/2007–83; 7 As 81/2005–79; 4 As 63/2005–69;
3 As 8/2007–83; 5 A 102/2003–43; 5 As 59/2006–85; 1 As 28/2006–97; 1 As 36/2006–75; 3 As 21/
2005–105; 4 As 24/2006–85.
The Practice 165
The areas of comparative inspiration vary. They include asylum law;59 telecom-
munications and electronic signature;60 freedom of assembly;61 competition law;62
tax law63 as well as other areas.64 Electoral disputes and matters of political parties
(registration, dissolution, annual reports etc) are a prominent area of compari-
sons.65 Comparative inspiration can also be identified in matters of general admin-
istrative law and principles, such as the definition of the notion of a measure of
general application (Allgemeinverfügung),66 imported to the new Czech Code of
Administrative Procedure from Swiss and German law;67 the notion of self-limita-
tion of the public administration by its previous practice;68 or the principle of
proportionality.69
Similarly to the practice of the CÚS, comparative arguments are sometimes used
as a supplement or reinforcement of the reasoning within one of the two systems of
European law, ie EU law or the ECHR. In the practice of the CNSS, this happens
more often within the context of EU law, especially as far as the national imple-
mentation of the various EU directives are concerned.70
Shortly after the Czech accession to the EU, the CNSS also started referring to
EU legislation and case law. As, however, the facts of these cases were still in the
period before Accession, EU law was not yet applicable, at least not substantive EU
law.71 However, even in such cases, the CNSS drew inspiration from EU law
sources and applied them as a sort of comparative authority. The CNSS made this
‘self-imposed’ consistent interpretation subject to two conditions:
(i) the interpreted national provision must have been adopted with a view to
approximating the Czech law with the EU model; and
59 21 August 2003, 2 Azs 5/2003–46 (the notion of a safe third country); 5 October 2006, 2 Azs
66/2006–52 (homosexuality as a ground for granting asylum); 16 May 2007, 2 As 78/2006–80

(refusal to recognize a fictitious marriage as a ground for granting permanent residence to a foreigner).
60 8 February 2007, 2 Afs 136/2006–102 (the notion of e-signature).
61 5 November 2007, 8 As 51/2007–64 (freedom of assembly at a Kristallnacht jubilee).
62 21 December 2004, 2 A 12/2002–503 (the notion of abuse of dominance).
63 18 May 2006, 2 Afs 101/2005–67 (on the character of road tax).
64 Cf, eg: 27 June 2007, 9 As 18/2007–109. The case concerned the question whether or not an
estate can be included in a hunting ground without the consent of the estate owner.
65 4 July 2006, Vol 51/2006–40 (the size of electoral constituencies); 4 July 2006, joint cases Vol
25/2006 and Vol 60/2006 (access to public television for political parties); 24 July 2007, Pst 1/2005
(the role of political parties in a democratic society).
66 27 September 2006, 1 Ao 1/2005 (transferability of mobile numbers).
67 Art 171ff of the Law no 500/2004 Coll. (Code of Administrative Procedure).
68 28 April 2005, 2 Ans 1/2005–57, where the CNSS invoked the German administrative principle
of administrative self-limitation (Selbstbindung der Verwaltung).

69 4 May 2006, 2 As 31/2005–78 (the conditions for granting a citizenship).
70 In the judgment of 27 September 2006, 1 Ao 1/2005, which concerned the transferability of
mobile numbers between various operators, the CNSS sought inspiration in the German, French, and
Belgian implementation of the Directive 2002/22/EC on universal service. In the judgment of 19 June
2007, 5 As 19/2006–59, the CNSS looked into how the EU Directive 2003/35/EC concerning the
access to justice in environmental matters was implemented in Germany and in Austria.
71 See generally: SL Kaleda, ‘Immediate Effect of Community Law in the New Member States: Is
there a Place for a Consistent Doctrine?’ (2004) 10 ELJ 102.

166 Czech Republic
(ii) the Czech legislator must not have demonstrated an express wish to deviate,
as far as the particular provision is concerned, from the EU model.72
This harmonious interpretation has two significant features. First, it is formulated
rather in terms of the advisable and suitable, and not as a general duty of consistent
interpretation. Second, the suitability of such interpretation is derived from na-
tional law and the decision of the national legislator to approximate its own legal
order with EU law. There was, however, for the cases with facts before Accession,
no general duty to consider EU law. Such instances of considering EU law thus fall
under the category of advisable comparative reasoning.73
Similarly to the CÚS, the point of greatest inspiration is the case law of the
German courts, especially the Federal Constitutional Court (Bundesverfassungs-
gericht) and the Federal Administrative Court (Bundesverwaltungsgericht). German
courts or German scholarship were referred to in about 75 per cent of cases in
which any comparative reference was being made. In the majority of these cases
(about 50 per cent) the only reference made was to German law. In the remaining
25 per cent it was a reference to Germany and other countries. Other legal systems
referred to included the UK,74 France,75 Switzerland,76Austria,77 and the USA.78
On closer inspection of the reference patterns, it was clear that most references to
foreign inspiration and especially to German law happened in the second chamber
of the CNSS and furthermore in the specialized chamber for disputes relating to
elections and referenda. The explanation for this phenomenon is not difficult to
find: the three members’ chamber was at the material time composed of one career
judge and two younger academics, both of them with an interest in German law.
One of the two younger academic lawyers was then also the president of the
specialized chamber for electoral disputes and disputes involving matters of political
parties.
Finally, on the quantitative side, the twenty or so identified direct references
represent only original references, ie the situations when the foreign material was
cited by the CNSS for the first time. In the decisions of the CNSS, however, the
once identified authority tends to be repeated in a number of subsequent cases
dealing with the same legal issue. The same applies to comparative reasoning: the
reference to a foreign inspiration becomes a cluster citation which is then copied
verbatim in future decisions of the same chamber or also by other chambers of the
CNSS.79
72 29 September 2005, 2 Afs 92/2005–45.

73 See generally: Bobek and Kühn (n 40) 340–4.
74 16 May 2007, 2 As 78/2006–80 (fictitious marriage of foreigners).
75 16 May 2007, 2 As 78/2006–80 (fictitious marriage of foreigners).
76 27 September 2006, 1 Ao 1/2005 (transferability of mobile numbers).
77 19 June 2007, 5 As 19/2006–59 (individual participation in environmental decisions); 8
February 2007, 2 Afs 136/2006–102 (the notion of e-signature).

78 5 November 2007, 8 As 51/2007–64 (freedom of assembly at a Kristallnacht jubilee).
79 For instance, the comparative passage from the decision 2 Afs 136/2006–102 on the electronic
signature was then copied and pasted in the decisions nos 2 Afs 135/2006–76; 2 Afs 80/2006–80; and
1 Afs 91/2006–101. Similarly the original comparative reasoning in an election dispute, Vol 25/2006–
2006, is than reproduced also in Vol 53/2006–280; Vol 60/2006–53; and Vol 65/2006–52.
The Practice 167
In the period 2003–2007, the CNSS decided 21,241 cases.80 With twenty direct
references to foreign law in that period, this means that the CNSS employed
comparative arguments in about one in one thousand cases only. If one were to
add the twenty-five or so instances of non-mandatory use of EU law, this would
mean that comparative arguments were made in one in five hundred cases.
However, about half of the total quantity of decisions are orders rejecting the
cassational complaint for inadmissibility. Although running a comparative argu-
ment in such a decision is not excluded, its likelihood is small. If one were thus to
calculate the number of citations of foreign law only against the number of
judgments given, which run to 10,673 in the period in question, it would mean
that a comparative argument was used approximately in one in 250 cases decided
by the CNSS.
There is, however, one development that merits attention. It is the distribution
of the references within the period studied. A clear majority of them (sixteen out of
the twenty non-EU law references identified) come from cases decided in 2006 and
2007. Conversely, there was just one such case in 2003, another one in 2004 and
two in 2005. In 2006, the amount of comparative references rose to six, in 2007 to
ten.
This uneven distribution of cases with comparative reasoning is essentially due to
two factors: first and foremost, it demonstrates the importance of analytical back-
up for carrying out similar types of studies. In 2004, a special unit was created
within the CNSS: the Analytical and Documentation Department. After a slow
take-off, the Department assisted judges in complex matters of European, inter-
national, and comparative law. For this purpose, any judge could request analytical
assistance from the Department in the form of a memorandum on specified issues.
Most of the queries would relate to EU law and the law of the European Conven-
tion. There would, however, also be instances of requests for comparative assess-
ment of a specific, typically contentious or unresolved issue. The existence of such
analytical assistance gradually becomes reflected in decisions of the CNSS.
Second, the rise in comparative reasoning in the CNSS is also partly due to
evolution in its docket, thus providing yet another confirmation of the correlation
between the size of the docket and the likeliness of judges to engage in any
comparative exercise. At the beginning of its activity in 2003, the CNSS was
swamped with unresolved cases taken over from the various courts which previ-
ously carried out a limited administrative review. Soon afterwards, due to badly
drafted legislation, the situation became even worse with the influx of cassational
complaints in asylum matters, rising to several thousand new cases in asylum
matters.81 It was only in 2006 and 2007 that the situation partly stabilized and
the style of the work of the CNSS moved from ‘assembly-line-style’ production of
80 Full statistical data are accessible at <http//:www.nssoud.cz/statistika.php>.

81 The number of cassational complaints in asylum matters rose from 409 complaints in 2003 to
3124 complaints in 2004. See generally: J Baxa and M Mazanec, ‘Správní soudnictví ve věcech
azylových: Rozbor recentního a současného stavu u Nejvyššího správního soudu’ (Administrative
Justice in Asylum Matters: Analysis of the Recent Situation before the Supreme Administrative
Court) (2005) 7 Soudce 23.
168 Czech Republic
judgments to a calmer style, which allows for a greater reflection on the legal issues,
including the use of comparative reasoning.
4. Explaining the Gaps

When looking at the situation in the Czech Republic, one becomes aware of two
intriguing gaps. First, there is the gap between the practice in some of the courts,
where comparative arguments are being made, especially in significant cases, and
the standard legal theory, which is not able to account for such practice and
conceptualize it. Second, there is the differentiation in the openness to comparative
arguments between, on the one hand, the CÚS and the CNSS, and the CNS on the
other. Both these gaps are caused by various aspects of the on-going legal transition
which will be now addressed.
4.1. Comparative Law without a Theory

In the Czech Republic, as in Slovakia and other countries in the CE region for that
matter, rapid societal evolution and the need to find new solutions swiftly after the
fall of the communist regimes brought about a lagging behind of legal theory.
Theories and concepts are traditionally being created ex post in order to explain
previous, often spontaneous and uncontrolled developments. There is thus a
natural delay. However, if one looks into the relationship between the practice
and theory in established legal systems, which have been analyzed in the previous
three chapters, then the positivistic legal theory will be able to at least roughly
conceptualize and explain what might be going on in practice.
No such reasonable correlation can (yet) be found in the relationship between
the Czech theories of legal interpretation and the practice of the courts. The limited
world of official legal theoretical debates which went on in the former Czechoslo-
vakia before 1989 was a strange mixture of an extreme positivistic vision of legal
interpretation, declaring full loyalty to the will of the communist legislator irre-
spective of the content of the law adopted, mixed with occasional direct application
of political slogans, in particular in the early period of communist rule.82 The lack
of interest in any legal theory worth the name before 1989 is, sadly, quite
understandable: in a communist system, which perceives law merely as the eman-
ation of will of the governing class, and announces its gradual dying out in the
(soon-to-be-achieved) classless socialist society,83 why bother with elaborating any
theories of judicial interpretation for use by courts, which functioned by entirely
different rules?
82 See generally: Z Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in
Transformation? (Martinus Nijhoff 2011).

83 See generally: J Přibáň, ‘Na stráži jednoty světa: marxismus a právní teorie’ (Guarding the Unity
of the World: Marxism and Legal Theory) in M Bobek and others (eds), Komunistické právo v
Československu: Kapitoly z dějin bezpráví (Communist Law in Czechoslovakia: Chapters from the
History of Lawlessness) (Masarykova univerzita 2009).
Explaining the Gaps 169
After the fall of the Iron Curtain, most of the pre-1989 approaches (as well as
scholars) were kept, just stripped of the political lingo. If any additional inspiration
was sought in the more conservative circles, it was often in the older Czech
scholarship of the times before the Second World War.84 The emerging conserva-
tive mainstream approach to legal interpretation thus tends to be limited to
vulgarized versions of four basic methods of interpretation introduced by Von
Savigny as restated in the Austrian-German legal writings from the turn of the 20th
century.
The exclusive focus on the text of a statute and the veneration of the will of the
historical legislator in the 19th-century style are, however, obviously not able to
provide for any workable model of interpretation of (the same) laws in the times of
legal transformation at the turn of 21st century. In such times, the practice moves
in precisely the opposite direction and seeks inspiration external to the past socialist
legislator.85 At this point, the gap between the legal theory and the practice in the
courts grows wider. In terms of comparative arguments, comparisons are carried
out rather intuitively by the courts without much theoretical underpinning or help
from the works of legal theory.
The same or even greater intellectual drought is also visible as far as comparative
works are concerned.86 The explanation for the absence of comparative studies after
1989 lies again in history.87 Before the Second World War, comparative law in
Central Europe was a necessity. The nation states created in the region after the end
of the First World War did mostly not reflect the previous centuries-long legal
borders. Thus, for instance Poland in 1920 did in fact have five distinct legal
systems on its territory; the then Czechoslovakia had three. The necessity and the
ensuing ability to do comparative law were evidenced in the academic writings of
the epoch. Scholarly works of the time dealt not only with various national legal
systems, but also introduced comparative elements of Austrian or German law,
sometimes accompanied also by discussion of French or Italian models (excursions
to English law being, at that time, rare).88
84 In particular the period of the so called ‘First Republic’ (ie the Czechoslovak Republic between
1919 and 1938) had been venerated and inspiration (scholarly, legislative, judicial) sought from
materials originating from this period. Perhaps rightly so: in particular, scholarly works from this
period represent some of the finest works written in the region in the course of the last century. On the
other hand, a number of visions and approaches from that period are difficult to transpose into a society
and a legal system at the beginning of 21st century. That would be like trying to conceptualize the
current case law of the German Bundesverfassungsgericht by reading Georg Jellinek’s System der
subjektiven öffentlichen Rechte (2nd edn of 1905), or the contemporary British Constitution with the
sole help of Dicey’s Introduction to the Study of the Law of the Constitution (whatever edition).
85 In detail see ch 14, section 2.3.
86 The only Czech general textbook on comparative law was published in 1996. It was, however,
published posthumously, ie after the death of the author Viktor Knapp, and was in fact more or less a
reprint of an earlier work written in the early 1970s. See Knapp (n 2).
87 See generally: Z Kühn, ‘Comparative Law in Central and Eastern Europe’ in M Reimann and
R Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2006); M Bobek, ‘Socialis-
tická srovnávací právní věda’ (Socialist Comparative Legal Science) in Bobek and others (n 83).
88 To give just one example: a leading textbook on administrative law by Jiří Hoetzel from that
period provided an introduction to the then valid Czechoslovak administrative law by also giving a
number of comparative examples drawn from Austrian, German, Hungarian, French, and Italian law.
170 Czech Republic
After the communist takeover in 1948, comparative law was banned. To be
precise: comparisons between the two systems, ie comparisons of socialist laws on
the one hand and capitalist laws on the other, were, for ideological reasons,
prohibited.89 Conversely, intra-systemic comparisons, ie comparative study of
socialist legal systems only, especially with a view to future unification of the laws
within the Council for Mutual Economic Assistance, were promoted.
When comparisons between the two systems became allowed again in 1959, the
study of capitalist laws and their comparison with socialist laws became a journey to
a known destination.90 The only permitted result of a similar study for a socialist
lawyer was to ‘establish’ the superiority of the socialist system of law. The intra-
system comparisons meant that one had to identify the Soviet legal system as the
most advanced one amongst the socialist systems and worthy of following in all
aspects.91
In sum, any comparison with anything foreign was a political, ideological
exercise with known results. It is thus hardly surprising that the field of study
was not much favoured by scholars (not to speak of judges92) who wished to survive
within the system and retain a minimum of intellectual integrity. The political
content of any comparative work under communist rule had two consequences,
which lasted even after the fall of the Iron Curtain. First, doing comparative law was
not popular and the subject itself gradually became marginalized. Second, as
comparative law ceased to be taught and practised, there was soon no one, who
could actually do it. Not only was there no knowledge of other legal systems, but
mere linguistic competence ceased to exist as well, in particular in the 1970s and
1980s.
These two factors continue to influence the fate of comparative law in the Czech
Republic as well as Slovakia and its use by courts. The disrepute of comparative law
as a very politically dependent field of study remains to some extent alive. Someone
who has just been freed from having to state the superiority of the Soviet system of
law in any book she writes may perhaps not be very keen on starting to state that the
best system is the German/English/US one. On the other hand, the opposite
See J Hoetzel, Československé správní právo: Část všeobecná (Czechoslovak Administrative Law: General
Part) (2nd edn, Melantrich 1937).
89 Generally HJ Bartels, Methode und Gegenstand intersystemarer Rechtsvergleichung (Mohr Siebeck
1982).
90 For a review of the early debates in Czechoslovakia, see (with, however, some caution as far as the
ideological dimensions of the article are concerned) V Knapp, ‘Le droit comparé en Tchécoslovaquie’
in Livre du centenaire de la Société de législation comparée (Imprimerie Moderne 1969).
91 To read through the literature of the period is fascinating and sad at the same time. For instance,
one Czech author opined in 1962 that ‘it has become already common in scientific works to compare
our legal institutions with Soviet ones. Soviet law has thus logically gained in relation to our law ( . . . ) a
similar significance as once had Roman law vis-à-vis the bourgeois legal systems of Continental Europe’
in J Boguszak, ‘K otázce tzv. srovnávací pravovědy’ (Concerning the Question of So-called Compara-
tive Legal Science) (1962) 101 Právník 803. Other authors did not hesitate to state that the gradual
approximation of a socialist legal system to the Soviet model is a constant scientific fact—see V Knapp,
‘Zákon stálého přibližování sovětskému příkladu’ (The Law of the Constant Approximation to the
Soviet Example) (1953) 92 Právník 220.
92 Within the judiciary, textualism was the advised survival strategy. Further Kühn (n 82).
argument, perhaps somewhat cynical but empirically also warranted, could also be
true: someone already used to advancing a political cause in academic work, rather
than carrying out critical and independent study, may also be tempted to just
replace the cause while keeping the style of work.93
Even more fatal was the loss of the ability in the academic world to do any
genuine comparative law. In this respect, however, there was internal differenti-
ation within the CE communist states, especially in the 1970s and 1980s. The
difference was between, on the one hand, the more ‘liberal’ Poland and Hungary
and, on the other hand, the ‘hard-line’ Czechoslovakia and the DDR. The latter
states remained until the very end of communist rule devoted to the basic tenets of
the communist faith.94 Additionally, the repeated purifications in communist
Czechoslovakia in 1950s and then again in 1970s disposed of anyone with
dangerous ‘cosmopolitan’ (ie comparative) approaches to the law. Poland and
Hungary, on the other hand, never resorted to such intellectual cleansing in the
first place. Within Polish universities, for instance, professors with other views were
oppressed, but they were allowed to stay at the university.95 Moreover, the situation
in these countries became further relaxed at the end of the 1970s (Hungary) and in
the 1980s (Poland), which allowed for exchange with the West and the relaunching
of comparative studies.96
This internal differentiation became visible at the end of the 1980s and in the
1990s, in the course of legal transition, when the need for comparative approaches
emerged in the context of starting the transformations in CE countries. The
transformation in Hungary and in Poland, albeit naturally plagued with its own
numerous problems, had some competence to build upon in terms of law. Legal
scholars and lawyers were able to join in and contribute to Western debates.97
Conversely, the Czech Republic and Slovakia found themselves in 1989 at point
zero. Comparative law was as good as non-existent, at least in the scholarship and
93 A fascinating study with similar motives in the German post-War context is C Joerges and NS
Ghaleigh (eds), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism (Hart
2003). An intriguing personal case study on Theodor Maunz is provided in M Stolleis, The Law under
the Swastika: Studies on Legal History in Nazi Germany (The University of Chicago Press 1998)
185–92.
94 See, eg: Die Rolle der Rechtsvergleichung in der Rechtswissenschaft, Rechtsausbildung und Rechts-
praxis der DDR sowie in der ideologischen Auseinandersetzung (Akademie für Staats- und Rechts-
wissenschaften der DDR, Heft 261 1982), which, even at the beginning of 1980s, defended hard-
line visions of necessary political and ideological struggle between the East and the West in the area of
comparative law. For a more personal comparative account of the different atmosphere and openness in
each of the CE countries in late 1980s, see T Gordon Ash, The Uses of Adversity: Essays on the Fate of
Central Europe (Penguin 1999).
95 Further see J Connelly, Captive University: The Sovietization of East Germany, Czech, and Polish
Higher Education, 1945–1956 (University of North Carolina Press 2000), especially ch 7 (126–41).
96 See, eg: the collective work by I Szabó and Z Péteri (eds), A Socialist Approach to Comparative
Law (Sijthoff 1977), which already in 1977 searched for the ‘third way’ in the approach to comparative
law. Most importantly, however, it clearly abandoned central communist dogma of ideological
function of comparative study and announced the need for scientific objectivity in comparative studies,
stating that cognition is something other than demonstration. Such an approach would be unimagin-
able in communist Czechoslovakia in the 1970s or in the DDR.
97 Examples Kühn (n 87) 227–34.
172 Czech Republic
legal education. The emerging use of comparative law and comparative reasoning is
thus practice-driven, with very little conceptual framework.
4.2. Judicial Differentiation and Institutional Mentality

The causes for the second gap, ie the difference in the approach to non-mandatory
foreign sources by the CÚS and CNSS on the one hand and the CNS on the other,
are twofold: institutional and personal. The institutional element is particularly
strong in the case of the CÚS and its inclination to reason comparatively.
A constitutional court in a new democracy is very likely to fulfil the role of a
guardian and enforcer of the new constitutional settlement against the established
institutions. Such a new body is inclined to seek external inspiration and especially
external legitimacy, as system-internal legitimizing resources are minimal.
Also the CNSS is a new institution, for which the same logic to a certain extent
applies. There is, however, also the personal element which comes to the fore-
ground with respect to the CNSS, especially if contrasted with the CNS. On the
level of statutory definition of their tasks,98 the functions of these two courts are
broadly the same: to guarantee the legality of the decision-making of the lower
courts and to preserve the unity of case law within their respective jurisdiction. Yet
there is a striking difference in the openness to comparative reasoning, as well as
other arguments, between the two courts. This is also accompanied by a difference
in the style of reasoning in judgments: the decisions of the CNSS tend to be longer,
reasoned in greater detail. They contain more references to academic literature. The
overall style is more open and discursive. The CNS, on the other hand, typically
issues more concise decisions and engages much less with scholarly writings.
The divergence in the style of the two supreme jurisdictions can be traced back
to a difference in their composition. The CNS is a pure type of a larger civilian
court, which is composed exclusively of life-long career judges. This means that
most of its members are justices who started their career before 1989. The CNSS,
on the other hand, was created only in 2003 out of a mixture of career judges, civil
servants, attorneys, and also younger academics. Such a personal mixture brought
with it a different style and approach, including openness to comparative argu-
ments and the (not just linguistic) ability to carry out comparisons. The ability to
navigate in foreign legal systems and to carry out any comparisons is, in a CE post-
communist country such as the Czech Republic, often related to age. With the
exception of very few émigré lawyers, who have entered the judiciary after 1989, the
generation of lawyers who were educated under the communist rule before 1989
find it very difficult to orient themselves in a foreign legal system.
In conclusion, it is obvious that institutional and personal setting matter. So does
the context. A newly established constitutional court may by necessity become a
98 See n 49 and n 56.

friend of comparisons as it looks for external inspiration and authority because

internal sources of both are quite limited in times of legal transition. Conversely, an
established supreme jurisdiction within the same system, which has existed for
decades, has very little incentive to change its reasoning patterns, as well as pools of
authority.99
99 A detailed discussion on this point is provided below in ch 14, section 2.4.

9
Slovakia
The judicial practice of the use of comparative arguments in the two highest Slovak
jurisdictions, the Constitutional Court (Ústavný súd—SÚS) and the Supreme
Court (Najvyšší súd—SNS), provides an intriguing contrast study to the develop-
ments described with respect to the Czech Republic. Both countries were, for the
most part of the 20th century, joined in one state: from 1918 until 1939 and from
1945 until 1968 within a unitary state, and from 1969 until 1992 within a
federation. The legal system, the legal method, and the style of judicial reasoning
thus became largely the same over the course of the century. Moreover, after the
negotiated split in 1993, both countries faced a similar set of transformation
problems. It could therefore be reasonably assumed that the amount and the quality
of the use of comparative reasoning in both jurisdictions might be roughly the
same, perhaps even greater in Slovakia than in the Czech Republic, as it is a smaller
jurisdiction with a stronger neighbour with an understandable language (the Czech
Republic).
To an external observer, this appears not to be true. The externally visible
quantity of comparative inspiration in the highest Slovak courts is meagre. The
number of cases in which any non-mandatory foreign authority, be it in the form of
a reference to a case or to scholarly writings, is invoked, are just few units within
thousands of decisions rendered each year. When reading through the decisions of
the highest Slovak courts, one could thus conclude that comparative reasoning is as
good as non-existent, especially in the case law of the Najvyšší súd. However, more
lies beneath: it appears that Slovak judges do regularly consult foreign (especially
Czech, sometimes also Hungarian or German) legal writings and case law. In the
dominant traditional circles within the Slovak judiciary, however, a reference to any
such non-mandatory sources is considered improper and it is discouraged.
The (Slovak) doctrinal views concerning judicial use of comparative reasoning
have already been addressed in the preceding chapter dealing with the Czech
Republic. The standard Slovak textbooks or monographs essentially reiterate the
same basic points as their Czech counterparts. They are plagued with the same
problems as those identified with respect to the Czech Republic in the previous
chapter. They are of limited use in discerning the actual situation in the Slovak
adjudication process. This chapter thus proceeds directly to the examination of the
judicial views and the practice of the two highest jurisdictions. Eventually, some
general conclusions are offered at the end of the chapter.
Judicial Views 175
1. Judicial Views
Judicial pronouncements on the use of comparative arguments by Slovak highest
courts are very rare. The members of the SNS appear to be entirely silent on this
issue, be it in a judicial or extra-judicial forum. The few limited pronouncements
have thus originated from the SÚS. The SÚS, however, has never formulated any
broader statements as to what argumentative value comparative law is attributed in
its decision-making. The identified references are typically made in the form of a
passing remark or reference to Czech or German law, with no indications as to why
they are appropriate or necessary.
There are, however, two more recent cases, in which comparative reasoning has,
for the first time, been approached in terms of its method and its proper use. Both
cases were heavyweight political decisions: the first one is the 2007 judgment on
abortions1 and the second one the 2009 judgment on the Special Criminal Court.2
The 2007 judgment on the constitutionality of Slovak Abortion Law was
exceptional in many ways. The SÚS took a full six years to decide the issue. For
the SÚS, the decision was exceptionally long: it ran to forty pages. It contains
approximately two pages of comparative argument. The SÚS referred to abortion
case law originating from Germany, France, the USA, and Switzerland and gener-
ally (without, however, any indication as to concrete case law) to the situation in
Ireland, Slovenia, Sweden, the Czech Republic, and other countries. At the end of
its consideration of the abortion laws in other jurisdictions, the SÚS concluded that
Taking into account the diversity in the legal framework of abortions as well as the scope
of constitutionally guaranteed right to life and the protection of privacy, the consti-
tutional comparative reasoning has more or less corroborative argumentative value.3
The comparative part in the reasoning of the SÚS appears thus to be somewhat
redundant. The SÚS just stated that because of the considerable difference between
the legal regimes referred to, the comparative argumentation can play only an
auxiliary role. No conclusion is, however, drawn as to what the auxiliary argument
in the particular case is. One cannot escape the impression that the comparative
considerations are contained in the decision only because someone believed that
similar types of arguments are supposed to appear in a similar type of case, without,
however, the arguments in fact contributing in any discernible way to the decision
itself.
The 2009 judgment on the constitutionality of the creation of the Slovak Special
Court was also a high-profile political litigation. There the use of comparative
1 4 December 2007, PL. ÚS 12/01. All the decisions of the SÚS quoted here can be located in full
text at the website of the Court at <http://www.portal.concourt.sk>.

2 20 May 2009, PL. ÚS 17/08. For a case note, see D Nikodým, ‘K prolematike súladu Špeciálneho
súdu s Ústavou Slovenskej republiky’ (On the Problem of Compatibility of the Special Court with the
Constitution of the Slovak Republic) (2009) 92 Právny obzor 330, in particular 334–8, where the
author discusses the comparative arguments in the reasoning of the SÚS.
3 PL. ÚS 12/01, final part of the reasoning in point II. 4.
176 Slovakia
argument became one of the many contentious issues between the majority opinion
and the dissenting minority.
The Special (Criminal) Court in Slovakia was created in 2003.4 It was one of the
measures of the then new reform government, elected after the fall of the Mečiar-
autocracy, to tackle the high rate of organized crime. The Act created a special
criminal court, which was given specialized jurisdiction over the entire Slovak
territory to hear cases related to organized crime and corruption. The court was
located in a high security building. Its judges were specially selected from amongst
criminal judges, given considerably higher pay and personal protection. They were
also obliged to undergo security screening by the Office of National Security. The
travaux préparatoires to the Act establishing the court stated that this was the only
way the government thought it possible to do something concrete in the matter of
organized crime, as the system of general criminal justice (the courts as well as the
public prosecutors’ offices) was believed to be itself corrupt and unable to tackle
large-scale organized crime and corruption.
The Special Court has been from its very foundation subject to fierce critiques
from within the judiciary5 as well as from other sides of the political spectrum. The
new government established in the 2006 elections, composed of an odd mix of left-
populists, nationalists, and the Mečiar-party, made the abolishment of the Special
Court one of its priorities.
In its decision of May 2009, the SÚS by a slight majority (7:6) declared the
Special Court to be unconstitutional. Eventually, the dispute became chiefly
focused on the official label which had been attached to the Special Court. Whereas
the majority labelled the court as an extraordinary court and therefore prohibited,
the minority argued that the Special Court was just a court with a special matter-
defined jurisdiction, which, however, at the same time, respected all the national
and European standards for a normal judicial body (independence, right to fair
trial, equality of arms, etc), was created by law, and was thus constitutional.
In its reasoning, the majority invoked the situation in a great number of states: in
total twenty-three out of the twenty-seven Member States of the EU. The
reasoning subdivided these states into three categories: those in which there is a
ban on extraordinary courts; those in which the establishment of extraordinary
courts is allowed under specific conditions provided for in the law; and finally those
in which the creation of extraordinary courts is not restricted at law in any way. The
decision announced these categories and gave the description of the considered
states in a laundry-list fashion, with no or very little reference to any authority from
these states. Strangely enough, there was no conclusion made on the basis of this list
of countries. No abstraction was drawn or any argument made on the basis of the
4 Act no 458/2003 Coll., on the Creation of the Special Court and the Office of Special Public
Prosecutor (zákon č. 458/2003 Z. z. o zriadení Špeciálneho súdu a Úradu špeciálnej prokuratúry).

5 A significant factor for discontent within the judiciary was also the fact that the justices of the
Special Court were given from three up to five times greater salaries than criminal court judges in
ordinary courts and had, at the same time, a much lesser caseload than ordinary courts.
Judicial Views 177
alleged legal regime in other countries. The ‘comparative’ bit again hangs in the air
with no added argumentative value to the reasoning itself.
This and many other shortcomings of the majority ‘use’ of comparative
reasoning were picked up in the minority opinion. The minority was critical
about the use of ‘comparative’ reasoning by the majority: It stated:
The comparative part of the opinion [majority opinion – note by the author], which
should be strong in its reasoning, especially as far as the classification of the [Special
Criminal] Court as either special or extraordinary court is concerned, using especially
European experience, has just descriptive and informative but no evaluative character
and it also reveals a number of considerable inaccuracies and simplifications. ( . . . )
Looking at the ‘comparison’ from this point of view (‘comparison’ indeed just in
quotation marks, as basic evaluative criteria are missing, i.e. the evaluation of the legal
systems on the basis of elements they have in common, in which they are similar and in
which they differ), it is necessary to observe that the comparative analysis in the
majority opinion of the Constitutional Court (pp. 80 – 83) is superficial and inaccur-
ate, and, at the same time in the context of the conclusions to the case and the
systematic of the reasoning slanted.6
The minority opinion then carried on and rebutted the majority argument on the
situation in Italy and Finland (arguing that they should be put in a different
category), as well as arguing in detail why the statement that Germany is a country
where special courts are categorically banned is incorrect.7 However, despite the
open criticism of the utilitarian and misguided way in which the comparative
argument was employed by the majority, the minority did not attack the use of
comparative argument per se. It just argued that it should be done in a more accurate
way. The minority argument was thus not about the whether, but the how.8
Strangely enough, the debate between the majority and the minority in this case
continued extra-judicially. A further rejoinder was later published in the most
widely read Slovak law journal by the president of the SÚS, Ivetta Macejková.9
The president, who voted with the majority in the case, wrote an extra-judicial
article the aim of which was, as she suggested, to explain the decision of the SÚS to
the legal public. The real content of the article represents rather a further polemic
with the minority opinion of the SÚS.10 With respect to the controversy between
6 Joint dissenting opinion of the Justices Ľudmila Gajdošíková, Juraj Horváth, Ján Luby, Lajos
Mészáros, Ladislav Orosz, and Rudolf Tkáčik of 20 May 2009, part 1.

7 Highlighting the difference the German Grundgesetz makes between Aushnahmegerichte, which
are prohibited in Art 101 (1) GG, and Sondergerichte, which are allowed in Art 101 (2) GG under the
condition that they are established by a statute.
8 Cf also a similar (albeit not that outspoken) debate between the majority and minority opinion
(and the applicants) in another later decision, 3 September 2008, PL. ÚS 29/05 (forfeiture of assets
acquired by criminal activity).
9 I Macejková, ‘Ešte raz k Špeciálnemu súdu’ (Once More on the Special Court) (2010) 62
Justičná revue 707.

10 To which the president even frankly agrees (n (9) 707), stating that the Law on the Consti-
tutional Court does not provide for the possibility of the majority to react to the minority opinion. She
therefore felt compelled to do so in a scholarly article. From a comparative perspective, however, the
phenomenon of a president of a constitutional court writing extra-judicially in order to disagree with a
minority opinion of her own court is rather singular. It implies either absence of any internal
178 Slovakia
the majority and the minority on the proper use of comparative reasoning, the
president partially conceded that the description of the situation in Italy and
Finland in the majority opinion was incorrect. In the rest, however, she suggested
that the comparative dissent suffered from the same shortcomings that it held
against the majority, namely the lack of proper evaluation of the comparative
materials presented. She also stated that the dissent was incorrect with respect to
the evaluation of German law.11
2. The Practice
2.1. Ústavný súd
Under the Slovak Constitution, the Constitutional Court (SÚS) is as an independ-
ent judicial body vested with a mandate to protect constitutionality.12 Amongst the
newly emerged Central European constitutional courts, the SÚS presently belongs
to the more powerful.13 It is entitled to conduct an abstract as well as a concrete
review of constitutionality, chiefly in the form of hearing individual constitutional
complaints against any final decision.14
This broad spectrum of competences of the SÚS is, however, relatively new,
dating only back to 2001.15 Before that, the SÚS was (most importantly) not
entitled to hear individual constitutional complaints.16 Although the SÚS sought
to substitute for this gap by expanding other types of review,17 it was not able to
communication within the court (the minority not allowing the majority to read their dissent and react
to it), or a political agenda on the part of the author (making a public statement on a very contentious
issue extra-judicially), or in fact both.
11 Macejková (n 9) 722–3.
12 Art 124 of the constitutional act no 460/1992 Coll. Constitution of the Slovak Republic. Details
on the functioning of the SÚS are provided for in the law no 38/1993 Coll., Act on the Organisation of
the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court
and the status of its Judges (the Constitutional Court Act).
13 See generally: R Procházka, Mission Accomplished: On Founding Constitutional Adjudication in
Central Europe (CEU Press 2002).

14 See, eg: M Posluch, ‘Die Verfassungsgerichtsbarkeit in der Slowakischen Republik’ in
O Luchterhandt and others (eds), Verfassungsgerichtsbarkeit in Mittel- und Osteuropa: Teilband I

(Nomos 2007) or A Bröstl and others, Constitutional Court of the Slovak Republic: Organization,
Process, Doctrine (The Constitutional Court of the Slovak Republic 2001).
15 Constitutional Act no 90/2001 Coll., republished in a consolidated version of the Slovak
Constitution as no 135/2001 Coll.

16 To be precise: the SÚS had been formally entitled to hear ‘individual complaints’ even before
2001. The already restrictively drafted conditions for standing in this type of procedure were, however,
even more narrowly construed by the SÚS. This had for its consequence the complete marginalization
of this type of procedure: only tens of complaints were lodged every year, with most of them rejected as
inadmissible. Further see Procházka (n 13) 73 and 186–9 or J Štiavnický, ‘Princíp subsidiarity v českej
a slovenskej súdnej moci’ (The Principle of Subsidiarity in the Czech and Slovak Judicial Power) in
V Hloušek and V Šimíček (eds), Dělba soudní moci v České republice (Division of the Judicial Power in
the Czech Republic) (Mezinárodní politologický ústav 2004) 155–60.
17 The SÚS partially sought to substitute for the lack of (any real) individual constitutional complaint
through a different type of proceedings, called a petition (podnet). In this type of proceedings, however, the
The Practice 179
provide the individual with relief in an individual case. Following an internal18 as

well as external19 critique, the system was changed in 2001 and a full constitutional
complaint, similar to the Czech or German system, was introduced.
a) The Visible
In quantitative terms, the number of open references to foreign law in the period
2001–2005 is very low. Only ten express references were identified.20 In the same
period, the SÚS decided, on average, slightly less than 2000 cases every year.21 This
means that comparative argument was openly deployed in just about 1 out of 200
cases. On the other hand, it is necessary to highlight that out of the 2000 cases only
about one-quarter are decided in the form of a full decision. The remainder are
disposed of by a reasoned order only, typically because the complaint is manifestly
inadmissible or because the complainant has not satisfied all the procedural
requirements for lodging a complaint.22 It is understandable that if the SÚS merely
wishes to state that the procedural requirements have not been met, comparative
reasoning is of little use for such a conclusion.
Comparative references typically appeared in plenary decisions, ie in cases where
the full court is sitting and deciding on the abstract review of constitutionality. Out
of the ten instances of comparative references identified, nine were made by the full
court. The SÚS renders about twenty-five plenary decisions every year. If one were
to calculate the average use of comparative reasoning only for this category of cases,
the figures would indicate that comparative reasoning appears in about every
fourteenth plenary case. The fact that almost all the instances of use of comparative
argument appear in decisions rendered by the full court is no accident. Abstract
review of constitutionality, decided by the full court, is typically initiated by the
major legal and political players23 and involves high-profile cases. It is in these cases
SÚS could only pass academic judgments. It was not competent to annul the challenged judgment of an
ordinary court or the challenged administrative decision.
18 Procházka (n 13) 186–9.
19 The external critique came (indirectly) from the ECtHR. In a number of decisions against
Slovakia, the ECtHR stated that the procedure(s) before the SÚS did not provide the kind of domestic
remedy that would have to be exhausted before relief could be sought before the ECtHR. See, eg:
decision on admissibility of the European Commission of Human Rights of 15 January 1997, Ivan
Preložník v Slovakia (app no 25189/94); decision on admissibility of the ECtHR of 22 October 2002,
joined cases Milan Andrášik and others v Slovakia (app nos 57984/00 and others); judgment of the
ECtHR of 7 January 2003, Žiačik v Slovakia (app no 43377/98).
20 Cited by case numbers only (all cases can be found online at <http://www.portal.concourt.sk>):
PL. ÚS 3/00; PL. ÚS 4/00; PL. ÚS 3/01; PL. ÚS 14/01; PL. ÚS 1/02; PL. ÚS 7/02; I. ÚS 20/02;
PL. ÚS 38/03; PL. ÚS 6/04; PL. ÚS 29/05.
21 The SÚS gave, for instance, 1880 decisions in 2003; 2000 in 2004; and 2056 in 2005—detailed
statistics are accessible at <http://www.portal.concourt.sk>.

22 The exhaustion of all available legal remedies and a time limit of two months from the entering
into force of the challenged measure—see Art 53 Constitutional Court Act.

23 Abstract review might be initiated by at least one-fifth of all Members of Parliament, the
President of the Slovak Republic, the government of the Slovak Republic, any court of general
jurisdiction, and the Attorney General (Art 130 of the Slovak Constitution).
180 Slovakia
where the court is most likely to seek external authority and base its decision on
more than reasoning out of its interpretation of the national constitution.
These trends are also confirmed by a qualitative survey24 of the structure of
reasoning of the Slovak highest courts, including the SÚS. The survey sought to
analyze not just the sources referred to in the decisions of the courts, but also the type
of argument employed as well as the use of general principles of law. The survey set
analyzed with respect to the SÚS were all the decisions rendered in the year 2005.
The analysis suggested that the SÚS used some sort of comparative argument four
times that year, with however just one express reference to a decision of the Czech
Constitutional Court.25 On the whole, the SÚS referred extensively to the case law
of the ECtHR (in tens of cases rendered by the full court and in a great number of
chamber decisions); in some instances to the case law of other Slovak courts
(especially of the SNS); and in a few exceptions to Slovak scholarly writings.
Express references in the decisions of the SÚS thus tended to be limited to its
own previous case law and the decisions of the ECtHR. Most often, the law of the
ECtHR served as the only external point of reference for the SÚS. In practical
terms, as one of the former justices of the SÚS put it,26 most of the international
potential in terms of time and resources tends to be spent on the monitoring and
identification of the (by now abundant) Strasbourg case law, thus leaving only
limited capacity for any comparative exercise.
Apart from the non-specific references, invoking a ‘comparable situation’ or legal
framework in ‘other European states’, without, however, specifying which states are
meant,27 the incontestable winner of the number of direct references is the Czech
Constitutional Court. It appeared in more than the half of the identifiable refer-
ences.28 The second most often cited is the German Federal Constitutional Court
(Bundesverfassungsgericht).29 There are few references to other courts or legal
systems, such as France,30 Poland,31 or the United States.32 Unlike the references
24 L Berdisová, ‘Analýza rozhodnutí Ústavného súdu Slovenskej republiky’ (Analysis of the Deci-
sions of the Constitutional Court of the Slovak Republic) in J Prusák and others, ‘Sociologicko-právny
výskum prameňov práva a justifikácia súdnych rozhodnutí’ (Sociological and Legal Research into the
Sources of Law and the Justification of Judicial Decisions) (2007) IV Acta Universitatis Tyrnaviensis
Iuridica 110.
25 Berdisová (n 24) 111 and 112.
26 Interview with Mr Juraj Babjak, from 2000 until 2007 Justice at the SÚS (Košice 22 November
2009).
27 Cf, eg: 30 March 2006, PL. ÚS 3/04-56 (social security payments to pregnant women); 4 March
2002, PL. ÚS 7/02 (disciplinary sanctions by the National Council of the Judiciary); 10 January 2002,
PL. ÚS 1/02 (freedom of speech).
28 Cf, eg: 4 December 2007, PL. ÚS 12/05-116 (judicial salaries); 19 October 2005, PL. ÚS 6/04-
67 (access to classified documents); 7 March 2002, PL. ÚS 14/01-34 (town planning procedures); 21
January 2003, I. ÚS 20/02 (right to a lawful judge).
29 Cf, eg: 24 April 2001, PL. ÚS 3/00-55 (ownership of agricultural land); 4 June 2000, PL. ÚS
4/00 (conditions of expropriation); 4 July 2000, PL. ÚS 52/99-50 (judicial independence and judicial
salaries).
30 Cf, eg: 11 December 2003, PL. ÚS 22/00-75 (students’ contracts); 6 September 2001, PL. ÚS
3/01 (prohibition of membership in political parties).

31 Cf, eg: 4 December 2007, PL. ÚS 12/05-116 (judicial salaries).
32 Cf, eg: 4 July 2000, PL. ÚS 52/99-50 (judicial independence and judicial salaries); 4 December
2007, PL. ÚS 12/01 (abortions).

The Practice 181
to the case law of the Czech or German Constitutional Court, these references
remain vague, generally on the level of an unspecified suggestion that the legal
situation in that state is different, without, however, identifying any sources for
such a conclusion.
The Czech constitutional law and the case law of the Czech Constitutional
Court serve as the first point of reference for most comparative considerations. The
choice of the potential second reference system differs according to the linguistic
competence of the respective justice or her legal secretary. For some, the second
reference system might be Germany; for others, especially the justices speaking
Hungarian, the second reference system would be Hungary.33
As is, however, apparent from the previous chapter dealing with the use of
comparative argument by the Czech Constitutional Court, the referencing favour
is not being returned. The Czech Constitutional Court refers to the case law of the
SÚS only sporadically.34 Despite the annual meetings and the regular contacts
between the two constitutional courts, it is only the SÚS which plainly gives
consideration to the decisions of its Czech counterpart and considers the Czech
court to be an authority on constitutional matters. The Czech Constitutional
Court, on the other hand, referred to the Slovak cases only in scenarios where a
specific post-transition problem has been tackled there already. It does not appear,
however, that the Czech Constitutional Court considers its Slovak counterpart to
be a general authority on constitutional matters. For that purpose, the Czech
Constitutional Court looks to Germany.
Moreover, in proceedings before the SÚS, there appears to be relatively frequent
use of comparative argument by the parties. The conventional form of a decision of
the SÚS contains a very detailed, sometimes even verbatim, lengthy narration of the
submissions of all the parties to the dispute. Additionally, the SÚS has started to
make submissions of the parties in proceedings on an abstract review of constitu-
tionality publicly accessible on its website. The result is the ability to reconstruct
the reasoning of the parties in some disputes quite well. There are dozens of cases in
which parties to the dispute submitted points of Czech law, either referring to the
case law of the Czech Constitutional Court35 or the Czech Supreme Court,36
which are, however, disregarded by the SÚS. Rarely have the comparative points
made by the parties found their reflection in the decision of majority or been picked
up as minority argument.37
33 Interviews with Mr Justice Ladislav Orosz (Košice 23 November 2009) and with Mr Justice
Lajos Mészáros (Košice 24 November 2009).

34 Amongst the few cases of the CÚS, see eg: 29 November 2002, Pl. ÚS 6/02 (self-administration
of churches and religious societies); 25 April 2005, Pl. ÚS 11/04 (review of the decisions of the
National Security Agency); 17 June 2006, Pl. ÚS 18/06 (recall of the Chief Justice).
35 From the tens of cases, see eg: I. ÚS 3/01; III. ÚS 37/03; I. ÚS 103/03; IV. ÚS 124/03; I. ÚS
116/03; IV. ÚS 36/04; III. ÚS 135/04; II. ÚS 78/05; I. ÚS 239/04; II. ÚS 171/06; I. ÚS 95/03; I. ÚS
121/06; III. ÚS 108/06; II. ÚS 243/06; PL. ÚS 6/06; III. ÚS 179/07; II. ÚS 116/07; IV. ÚS 305/07.
36 Cf, eg: 19 May 2004, III. ÚS 169/04; 13 December 2005, IV. ÚS 214/04; 22 March 2006,
I. ÚS 252/05; 22 March 2007, II. ÚS 92/06.

37 Cf, eg: 15 March 2001, III. ÚS 31/01 or dissenting opinion of Justice Gajdošíková and Barány of
17 May 2004, PL. ÚS 38/03, respectively.

182 Slovakia
The pre-eminence of the Czech constitutional law before the SÚS is not difficult
to explain. First, both constitutional courts, the Slovak as well as the Czech, in fact
interpret the same original piece of constitutional text on fundamental rights: the
(Czechoslovak Federal) Charter of Basic Rights and Fundamental Freedoms,
which, with only slight alterations, remained the same document in both national
constitutions.38 Secondly, there is the common political and legal history, which
only ended on 1 January 1993, with the negotiated split of the former federation.39
Before the separation, Slovak legal academia was dominated by Czech legal
writings. This situation, surprisingly, did not change much after the dissolution
of the federal state, neither in terms of legal scholarship, nor in terms of legal
education. As far as the latter is concerned, it could even be suggested that in the
last decade or so, the number of Slovak students and researchers at Czech univer-
sities has matched or even surpassed the numbers of Slovak students in the then
Czech part of the common state in the times of the Czechoslovak Federation.40
This, of course, remains not without impact on the work with sources in the SÚS,
as elsewhere in Slovak legal life.
As in the case of the Czech absence of consideration of Austrian law, there is a
surprising lack of any (at least open) references to Hungarian law before the
SÚS. For almost one thousand years, the territory of Slovakia was a part of
Hungary. Although it was later integrated into the Austro-Hungarian Empire, it
remained administratively as well as socially a part of the Hungarian half of the
Austrian Empire. The applicable law was Hungarian law, in the area of private law
based mostly on customs and few codifications.41 Hungarian private law was in fact
valid and applied on the territory of Slovakia even until 1951, ie for a considerable
period of common Czechoslovak history.42
A number of reasons for the absence of any open argumentative use of Hungarian
law could be suggested. First, Hungarian law and the legal system are perhaps no
longer considered, by most of the present Slovak legal establishment, to constitute
an authority. Hungarian law and the case law of the Hungarian Constitutional
Court were very forward-looking at the beginning of the societal transformation in
38 The Charter was originally promulgated by the federal constitutional law no 23/1991 Coll. of 9
January 1991. For the Czech Republic, it was later republished in no 2/1993 Coll., whereas the Slovak
Parliament incorporated the Charter with some minor modifications as Arts 12–54 of the Constitution
of the Slovak Republic.
39 For a discussion in English, see: E Stein, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure,
Negotiated Break-up (University of Michigan Press 1997).

40 According to statistics, there were 16,500 Slovak nationals students enrolled at Czech universities
in the academic year 2007/2008. In law, the number of Slovak students at all the Czech public law
faculties accounts for about one-third of the total number of students. See ‘České univerzity jsou u
slovenských studentů v kurzu’ (Czech Universities are high in demand by Slovak Students), <http://
www.novinky.cz> (Prague, 20 December 2007).
41 Most notably the Tripartitum of Istvan Verböci of 1517 (updated and republished as valid law
until 1902). The first Slovak version of the law applicable on its territory for more than 400 years is
from 2008 by Erik Štenpien (Bratislava, Euro-Kodex 2008). All the previous versions were either in
Hungarian or in Latin.
42 See generally: Š Luby, Dejiny súkromného práva na Slovensku (History of Private Law in Slovakia)
(Iura Edition 2002).

The Practice 183
Central Europe in 1990s. Since 2000, however, the system has been losing most of
its glamour and credit. It is plagued by its own transition problems (political,
financial, as well as legal) and the solutions adopted therein do not appear to appeal
as an instance to be followed. Secondly, the Hungarian system of constitutional
review through an actio popularis and not via a constitutional complaint of the
Germanic type for which the Slovak constitutional system eventually opted previ-
ously provided a systemic difference, which limited to some extent the inspiration
obtainable from the Hungarian constitutional case law. Thirdly, but in practical
terms perhaps most importantly, there is an additional problem, which is of a
political nature: the on-going unresolved issues with the Hungarian minority in
the south of Slovakia and the ensuing occasional political tensions between Slovakia
and Hungary. The more recent political relations between the two countries have
ranged from very problematic in the period of the Mečiar-governments to good in
the period of the Dzurinda reform governments, when the representatives of the
Hungarian minority even took part in forming the government. Since 2006 and the
participation of Slovak nationalist parties in the government, one may observe again
a certain temperature drop in mutual relationships.43
Such political considerations may make any open reference to Hungarian law or
case law difficult, despite the fact that a number of Slovak judges and constitutional
justices understand Hungarian and sources on Hungarian law are available. It
appears that the Hungarian-speaking justices at the SÚS read the decisions of the
Hungarian Constitutional Court.44 There are also formal as well as informal
contacts between the Slovak and the Hungarian Constitutional Courts and their
justices. Hungarian decisions are nonetheless not openly quoted. Hungarian law in
today’s Slovakia thus represents an example of a functionally possible but politically
unacceptable type of foreign authority.
b) The Hidden and the Flux

At first sight, the use of comparative reasoning by the SÚS appears to be very
limited. Only a handful of accidental and often very vague references can hardly be
said to account for any consistent practice of comparative reasoning. There seems to
be, however, at least with respect to the current45 SÚS and part of its members, yet
43 Resulting, inter alia, in a recent action brought by Hungary against Slovakia before the Court of
Justice of the EU for infringement of EU law (Case C-364/10, Hungary v Slovakia, judgment of 16
October 2012, n. y. r.). The case concerned the Slovak refusal in August 2009 to allow the president of
Hungary, Mr László Sólyom, to enter Slovak territory in order to participate in the inauguration
ceremony of the Saint Stephen’s statute in Komárno. Instances of EU Member States suing other
Member States in the Court of Justice for the infringement of the Treaty are extremely rare. In the
entire history of the European integration, there have been only five cases, and just three of them
resulted in a judgment.
44 Interview with Mr Justice Lajos Mészáros (Košice 24 November 2009).
45 The current SÚS, which is the third SÚS in the history of this institution, was appointed at the
beginning of 2007. The reference period, addressed above, relates, however, to the second SÚS, which
was in office from 2000 until 2007.
184 Slovakia
another world of internal comparisons which lies beneath the content of the final
decisions published in the official law reports or on the website of the SÚS.
Some of the justices at the current SÚS claim to employ comparative reasoning
more often and in much greater analytical detail than traditionally displayed in the
decisions of the SÚS.46 It might occasionally happen that comparative reasoning,
which is submitted by the reporting judge in the first draft of the (typically plenary)
decision, is then, however, wholly or partly deleted in the deliberations of the
plenary court. Only a fragment is taken over into the final version of the decision.
This is due to the conviction of the current majority at the SÚS that comparative
reasoning is, similarly to for, instance, a detailed exposé on the historical intention
of the legislator or discussion of the opinion of the legal scholarship, for internal use
only. It ought simply to confirm the result reached within the traditional methods
of reasoning, ie a certain internal reassurance.
Such views are based on the widely spread conviction within the Slovak judiciary
that a judicial decision should display only binding legal arguments, which essen-
tially means just constitutional laws and statutes, but nothing else. More broadly, it
is believed that the reasoning of a court should be short, concise, and as straight-
forward as possible. Scholarly meditations on persuasive sources have their place in
a scholarly article, but not in a decision of a court.
The openness to comparative reasoning at the SÚS varies over time, often as a
matter of policy, depending on the composition of the respective SÚS.47 Only
limited use of comparative reasoning was discernible in the practice of the first SÚS
from 1993 until 2000. As already mentioned, the competence of the SÚS at that
time was different.48 More importantly, however, the judicial policy could be said
to be predominantly textualist,49 thus perhaps in only limited need of any compara-
tive arguments.
The gates opened somewhat with the second SÚS, with the term of office from
2000 until 2007, which was given the competence to hear individual complaints.
This arguably was a period in which greater use of comparative arguments might
have been possible, mainly for two reasons. First, a completely new area of
competence opened (individual constitutional complaints), of which there was
only little experience in Slovakia. On the other hand, the Czech Constitutional
Court had already developed (since 1993) a rich case law on these matters. Second,
the post-Mečiar appointees were a different set of personalities, some of them with
considerable linguistic skills and/or academic background. There was thus an
obvious potential for inspiration to be taken over from the Czech counterpart
and/or elsewhere. At the same time, however, the policy of some of the influential
members of the SÚS was not to ‘give in’ to Czech influence and example, but rather
46 The information in the following two paragraphs was provided by Mr Justice Lajos Mészáros in
an interview held on 24 November 2009 in Košice.

47 For a critical appraisal, see J Drgonec, Ochrana ústavnosti Ústavným súdom Slovenskej republiky
(The Protection of Constitutionality by the Constitutional Court of the Slovak Republic) (Eurokódex
2010). Ján Drgonec was a member of the first SÚS (with term of office 1993–2000).
48 See text to nn 12 to 19. 49 In detail Procházka (n 13) 186–201.
The Practice 185
to develop their own case law and approaches. The Czech comparative inspiration
was thus a welcomed guest only to some members of the SÚS.
With the third SÚS, which has been in office since 2007, the mood appears to be
again changing, with the two reasons previously mentioned now working in the
reverse direction. First, there is now some case law of the SÚS in the area of
constitutional complaints and other substantive as well as procedural issues. The
need for immediate foreign inspiration is diminishing. Second, the personal set-up
of the SÚS has also changed considerably. The majority of the justices are now
former career judges, who typically launched their judicial career in late 1970s or
1980s and whose direct access to foreign sources other than Czech is limited for
linguistic reasons. Finally, the docket of the SÚS keeps rising by several hundreds of
constitutional complaints annually. Under such an institutional setting, compara-
tive potential (as well as willingness) diminishes accordingly.
Moreover, within the third SÚS, the membership, the work, and the overall
mood within the institution became perhaps somewhat politicized. This was visible
in a number of cases, in which the pro-governmental majority would find little
argumentative common ground with the more liberal minority. The political
dispute spilled over into the matter of the use of comparative reasoning by the
SÚS, with each side starting to accuse the other of selective, misguided, and
utilitarian use of foreign authority, of which the above outlined case of the
constitutionality of the Special Criminal Court50 offers a telling example.
2.2. Najvyšší súd

The Supreme Court (SNS) is the supreme jurisdiction for all areas of law. In
Slovakia, there is no institutionally separate administrative justice. The judicial
review of administrative acts is carried out within the ordinary courts by specialized
administrative chambers.51 In criminal and civil matters, the SNS acts as a third-
level jurisdiction, entitled to hear extraordinary appeals which should be limited to
points of law only.
The case of the SNS is an example of institutional and cultural settings which are
hostile to any open use of comparative reasoning or any persuasive argument
generally. In the period studied, ie 2001–2005, no single instance in which the
SNS would have openly employed any comparative argument was identified. At
least no such reference exists in the decisions of the SNS published in its official
court reports. It is important to note, however, that to faithfully account for the
practice of the SNS is impossible. The SNS decides several thousand cases each
year. Until the second half of 2008, however, the vast majority of these decisions
were not publicly accessible. The SNS used to publish only about eighty decisions
every year, which were selected internally by the SNS and published in the
(printed) official ‘Collection of the Opinions of the Supreme Court and the
Decisions of Courts of the Slovak Republic’. All other decisions of the SNS
50 See text to nn 4–11.

51 Cf } 246 of the law no 99/1963 Coll., Občiansky súdny poriadok (Code of Civil Justice).
186 Slovakia
remained inaccessible to the public.52 Just one copy of the decision was served to
each of the parties to the dispute. This lamentable situation regarding access to
the decisions of the SNS started to change gradually in the second half of 2008,
since when the SNS has started publishing its most recent decisions in an online
database.
However, the few decisions published annually in the printed Collection can
serve as a good yardstick of the referencing practice of the SNS. Because of its
lengthy and careful selection and publication process, the decisions published in the
Collection can be said to be the flagship product of the whole SNS. This flagship,
however, does not fly any comparative flag at all. The reasoning of the decisions and
opinions contained in the Collection are most often limited to literal (grammatical)
reasoning, occasionally accompanied by a historical argument (what the intention
of the legislator was) or systematic or logical argument. There is no mentioning of
any foreign authority at all. There are also no references to any domestic authorities
beyond statutes, constitutional laws, and derived legislation, be it previous case law
of Slovak courts or Slovak scholarly writings.
In a recent study, a research team from Trnava University came to very similar
conclusions regarding the referencing practice of the SNS. Two in-depth studies
carried out focused on the decisions rendered in 2005 by the administrative
division of the SNS53 and the decisions issued by the civil division of the SNS
also in 2005.54
The study on decisions of the administrative division analyzed 396 decisions out
of 2323 decisions issued by the administrative division in 2005. There was just one
decision in which the SNS mentioned a foreign authority, a judgment of the Czech
Constitutional Court. This was, however, done only in passing and as a rejection of
a (repetitive) argument made by the applicant, who sought to refer the SNS to
Czech case law. The SNS stated that Czech case law can be only of limited use, as
the law in the Czech Republic is no longer the same as the law in Slovakia.
Otherwise, the nine chambers dealing with administrative matters at the SNS
reasoned in a very brief manner and with little more than literal arguments. Own
previous case law was cited very sporadically. No scholarly writings were cited at all.
The study on decisions of the civil division analyzed 797 decisions rendered by
the SNS on civil matters in 2005. No foreign case law was mentioned; there was
just one single reference to a Czech textbook. The chambers of the civil division,
52 One may only add that the decisions were not accessible even internally, as the SNS had, until
2009, no internal system of evidence or database of its own case law. It could therefore happen that one
chamber of the SNS decided a legal problem in one way, whereas another chamber decided it in the
opposite way without the justices knowing of the practice of the other chambers. It is obvious that
instead of unifying the case law of the lower courts, the practice of the SNS often generated even more
confusion.
53 L Wáclavová, ‘Analýza rozhodnutí Najvyššieho súdu Slovenskej republiky v oblasti správneho
práva’ (Analysis of the Decisions of the Supreme Court of the Slovak Republic in the Area of
Administrative Law) in Prusák (n 24) 77–90.
54 R Majerský, ‘Analýza rozhodnutí Najvyššieho súdu Slovenskej republiky v oblasti občianskeho
práva’ (Analysis of the Decisions of the Supreme Court of the Slovak Republic in the Area of Civil Law)
in Prusák (n 24) 90–109.
The Practice 187
however, referred more often to previous domestic case law, be it their own or the
decisions of the Slovak Constitutional Court. Slovak scholarship was cited five
times in the entire year. The style of reasoning could be said to be a little more open
than that of the administrative chambers.
The overall style of reasoning of the SNS was thus rather closed and limited as to
its sources. Most of the judicial reasoning efforts are spent on narrating the previous
procedure and the arguments of the parties; only very little space (conventionally
just one or a few paragraphs after pages of procedural history) is reserved for
reasoning on merits. Within the reasoning on merits, the only publicly displayed
sources for the judicial decision are ‘strictly legal’ sources: statutes, constitutional
laws, and derived legislation. Virtually no secondary legal sources are ever men-
tioned, even of national origin. Within such institutional and cultural settings, one
can hardly expect to see any comparative reasoning.
All this, however, does not mean that comparative considerations, especially the
taking into consideration of Czech law and case law, are not carried out at all. Some
of the justices at the SNS suggested that they consulted foreign legal materials, most
frequently Czech, but sometimes also German or Hungarian literature.55 They
would, however, never openly cite them.
Slovak judicial decisions are distinctive for their brevity. This brevity becomes
apparent even when contrasted with their closest neighbours, such as the Czech
Republic or Austria. A typical decision of the SNS has no more than three to four
pages. The longest part (approximately two-thirds or three-quarters of the text) will
be dedicated to the recounting of the previous procedure before the lower court, or
before administrative authorities in the case of an administrative review, and the
submissions of the parties to the court.
The style of reasoning of Slovak courts is more concealing than revealing.
A decision will typically announce only one or two arguments in favour of the
judgment. Other arguments are not discussed or even disclosed. Three reasons are
commonly mentioned in order to explain the traditional brevity of substantive
reasoning.56 First, the candidates for judicial positions are taught at the time of
their apprenticeship to keep the reasoning as short as possible and limited to only
one main argument. Secondly, the shorter the decision is, the less possibility there is
for the appellate court/Constitutional Court to identify a mistake in the reasoning,
should the decision be appealed. Thirdly, there is no tradition of citation. Judicial
decisions virtually never cite scholarly works. Surprisingly, the SNS does not even
cite its own prior case law. If it wishes to restate its previous decision, it extracts the
reasoning and copies it into the new decision.57
55 Interview with Mr Justice Igor Belko, judge at the SNS (Bratislava 27 February 2008) and
interview with Mrs Justice Jana Baricová, judge at the SNS (Bratislava 28 February 2008).
56 Interview with Mrs Justice Jana Baricová (Bratislava 28 February 2008).
57 The absence of citation of own case law started to change gradually only in 2005 and 2006, after
the SNS started realizing its function as a ‘precedent’-setting court, especially in the administrative
division, where most of the parties (administrative authorities) are repetitive players. The absence of
citing own case law is, however, interlinked with the above mentioned (n 52) lack of internal
accessibility of own case law. What one has no access to, one can hardly cite.
188 Slovakia
The brevity of the decisions is even further indirectly encouraged by the way the
case law of the SNS is published in the printed Collection. The publication process
is complex and highly selective. To qualify for publication in the official Collection,
the reporting judge has to submit the text of the final decision to the appointed
editor of the Collection for the respective division of the SNS (criminal, civil, or
administrative). The editor may format and shorten the decision, which then is
passed on to the meeting of the respective division of the SNS for approval. These
two filters of the editor and the division’s approval function as guardians of the
convention. As one of the younger justices at the SNS disclosed, the administrative
division of the SNS has on two occasions deleted references to Czech law from the
reasoning of a decision which was to be published in the Collection.58
In Slovakia, one can observe, similarly to other systems, a correlation between
the willingness to openly use persuasive domestic arguments (typically scholarly
writings) in judicial reasoning and the likelihood of open use of comparative
reasoning. The Slovak ordinary judges go but very rarely beyond the ‘strictly
legal’ in their reasoning. It is thus hardly surprising that open comparative argu-
ments are as good as non-existent. There appears to be a strongly felt convention
within the Slovak judiciary that citing persuasive legal sources is something im-
proper for a judge to do. Persuasive arguments are a matter for an academic lawyer,
not for a court. This position, which emerged in almost all the interviews carried
out with Slovak career judges, was also identified in a recent Slovak sociological
study. The study sought to identify sources of law accepted by the Slovak judges.
About 55 per cent of the judges interviewed categorically stated that references to
previous case law as well as scholarly writings have no place in a judicial decision
which is to be grounded only in ‘valid law’.59 A minority of the judges accepted that
references to these sources might appear in a judicial decision, but they made such
reference subject to additional conditions, such as that it may only happen in reply
to an express point raised by the parties, or that case law might be cited only in cases
where the interpretation of the law is unclear. Finally, only a small minority
accepted that references to previous case law or scholarly writings are a good
thing per se, as they enhance the persuasiveness of a judicial decision.60
This convention continues to be imparted to the new career judges within the
system. It appears to be partially disregarded by non-career judges being appointed
to the bench from outside the career judicial system—either those few coming into
the SNS, or the academics appointed to the SÚS. However, as lateral mobility
between the legal professions in Slovakia is very limited, the convention still
operates with the vast majority of judges.
Slovak judges thus largely stick to an almost bipolar logic of binding and non-
binding sources of law. Only the binding ones may appear in a decision; the others
58 Interview with Mr Justice Ivan Rumana, judge at the SNS (Bratislava 26 February 2008).
59 J Prusák and others, ‘Sociologicko-právny výskum prameňov práva a justifikácia súdnych
rozhodnutí’ (Sociological and Legal Research into the Sources of Law and the Justification of Judicial
Decisions) (2007) IV Acta Universitatis Tyrnaviensis Iuridica 44, 66, and 67.
60 Prusák and others (n 59) 67.
The Difference 189
are off limits. The same logic in Slovak courts is visible also with respect to EU law,
which functioned, in the period before Accession as a sort of persuasive/compara-
tive argument for the interpretation of national law.61 Some courts in the CE
region, including the already discussed Czech example,62 have recognized the need
for gradual judicial harmonization. They started considering the still non-binding
EU law to be a sort of persuasive authority which the national courts and public
administration would be well advised to follow. The Slovak courts have taken a
different stance. One of the striking features of the domestic impact of EU law on
the national judicial process in Slovakia was the absence of any argumentative use of
EU law prior to the Enlargement.63 The Slovak courts, with the limited exception
of the SÚS,64 appeared to be trapped in the above described bipolar logic of
binding/non-binding sources of law. The more subtle uses of legal reasoning and
EU law as a persuasive authority or (comparative) interpretative aid were absent.65
Finally, there is also a strong institutional factor which virtually prevents any
‘luxury’ of engaging in comparative analysis. Traditionally, the SNS was composed
exclusively of judges and auxiliary staff (court recorders and secretaries). There was
very little professional support in the form of legal secretaries, no analytical or
research department that could carry out comparative studies on behalf of the
justices. The likelihood of judges, who are supposed to close tens of cases every
month, engaging in a comparative analysis on their own, is for such pragmatic
reasons very low.
3. The Difference: Common History Does

Not Mean the Same Present
The Czech Republic and Slovakia shared, for the most of the 20th century, their
modern statehood. Yet despite this common heritage, their ways in the openness of
judicial discourse and reasoning have parted since 1993. As is apparent from the
previous chapter, the Czech highest courts, in particular the Czech Constitutional
Court and the Supreme Administrative Court, are more open to non-mandatory
legal arguments and thus also more open to the display of comparative arguments.
The style of the Slovak courts, especially that of the SNS, appears still to be trapped
in the judicial style of late communist era of the 1970s or 1980s.

63 See generally: M Bobek and Z Kühn, ‘Europe Yet to Come; The Application of EU Law in
Slovakia’ in A Łazowski (ed), The Application of EU Law in the New Member States: Brave New World
(TMC Asser 2010).
64 Cf decision of 25 May 1999, PL. ÚS 37/99 or the order of 9 November 2004, PL. ÚS 7/04,
where the SÚS drew some inspiration from EU law even for the period before Slovak Accession.
65 A typical pre-Accession example of this sort is the decision of the SNS of 25 August 1999,
published in [2000] 4 Zbierka stanovísk Najvyššieho súdu a rozhodnutí súdov Slovenskej republiky
55.
190 Slovakia
To fully account for the difference is difficult. Three reasons will be suggested
here: one personal, one practical, and one political. The personal reason is the lack
of any positive competition in the quality of judicial reasoning. Such competition
was launched, albeit very slowly, by the Czech Constitutional Court in 1993. From
the very beginning, the decisions of the Czech Constitutional Court differed
considerably from the then common ‘Czechoslovak’ standard. The Constitutional
Court started to employ reasoning out of principles, values as well as referencing to
case law and scholarly literature, even of non-legal nature. Towards the end of the
1990s, such style started to be occasionally reproduced in other courts’ decisions.
The advent of the new millennium and the influx of both European systems of law
(ECHR as well as EU law) further showed to judges that a different style of
reasoning is possible. The change was then further accelerated by the creation of
the Czech Supreme Administrative Court in 2003, which, from its beginning,
adopted a quite open and discursive style in its judgments as well. It also took on
board references to case law and scholarly writings. This made referencing to non-
binding sources acceptable and indirectly also a requirement for lower adminis-
trative courts. Additionally, over the last ten years in the Czech Republic, a number
of younger lawyers, sometimes with an academic background, entered various levels
of the judiciary, contributing internally to the change in judicial style and referen-
cing. In short, the convention has gradually changed.
No such change is discernible in Slovakia. Within the SÚS, academically minded
justices are in a minority, thus influencing the practice of the SÚS only minimally.
The SNS is a conservative institution, composed almost exclusively of senior career
judges, with lateral mobility as good as excluded. There is thus no one who could
launch an internal change within the judiciary as far as the quality of reasoning is
concerned. The competition appears to be actually reversed, with a ‘let’s-do-the-
minimum’ approach prevailing.
The second, practical reason has already been mentioned in passing: with the
exception of the SÚS, Slovak judges, even at the top level, do not have any legal
secretaries, ie qualified young lawyers who could help them in drafting their
opinions. On the other hand, in the Czech Supreme Court, every judge has at
least one legal secretary; in the Supreme Administrative Court, each judge has two
legal secretaries; and at the Constitutional Court, there are three legal secretaries
assigned to each justice. If judges are obliged to dispose of dozens of cases every
month, as otherwise they might be exposed to disciplinary sanctions for neglecting
their work, and there is no skilled support in such a task, it is obvious that doing
comparative legal research is really not on the daily agenda.
The third, political reason is the most difficult to capture. There are nonetheless
two political factors hostile to open comparisons in the Slovak courts. First, full
judicial independence is not necessarily guaranteed in Slovakia, the most recent
developments being especially worrisome.66 Within such a system, a judge wishing
to keep a low profile which guarantees survival within the system would, in a way
66 Further in English see eg: M Bobek, ‘The Administration of Courts in the Czech Republic—in
Search of a Constitutional Balance’ (2010) 16 EPL 251, 256–8.

The Difference 191
quite similar to the communist past, stick to textual (literal) reasoning and try to
put as little visible personal choices within the reasoning as possible.67 The best way
of avoiding any personal choices by a judge is to content oneself with only textual
reasoning out of valid statutes, ie the clearly demonstrated will of the political
power. Secondly, embracing comparative reasoning and openly displaying the
source of inspiration presupposes a certain amount of self-trust of the system in
itself and of the judges in themselves within the system. To quote openly means to
acknowledge influence. Such mentality has perhaps not been, for historical reasons,
very strong in Slovakia. Older as well as more recent Slovak history has always been
portrayed as a struggle against a (perceived or real) foreign power: Hungarian,
German, Soviet, and eventually Czech. Slovak statehood is only very recent (since
1993) and mentally somewhat fragile. The public rhetoric has been dominated by
visions of long awaited national sovereignty and ‘liberation’ from the Czech and all
the other previous dominations. In such political circumstances, to acknowledge
publicly that the former ‘invaders’, in this context the Czechs or the Hungarians,
still exercise a considerable degree of influence over the Slovak legal system indir-
ectly, might not be perceived as politically advised. Instead, a bifurcated system is
put in place, in which a number of judges claim to read foreign law, but no one
quotes it openly.
67 Further on this phenomenon, see ch 14, section 2.2.

10
An Empirical Epilogue: Quantity,
Quality, and Beyond
This chapter provides working conclusions for the case studies. At the same time, it
also represents the starting point for further discussions of the theoretical aspects of
the use of comparative arguments by courts in the third part of this book.
1. The Quantity
The identified amount of the use of non-mandatory foreign inspiration by supreme
courts in the jurisdictions studied is very low. Any open resort to non-mandatory
foreign authority is limited to per mille of cases decided every year, rising perhaps to
one or two per cent if the relevant set of decisions is limited only to those published
in the official court’s reports. This typically means, in absolute numbers, just a
handful of cases within hundreds or thousands of cases annually decided by the
court in question. It cannot therefore be suggested that if left with a choice, judges
appear keen to engage with foreign law.
The only exception in this respect is the intra-common law referencing in the
English courts. This amounts on average roughly to every one in four cases
decided in the Appellate Committee of the House of Lords (today UK Supreme
Court). This referencing is, however, quite selective: references to the systems
outside of the few selective common law countries of the British Commonwealth
are extremely low, even lower than the amount of comparative reasoning in the
Continental jurisdictions studied. Therefore, all depends on how the phenomenon
of intra-common law referencing is qualified. If it were to be seen as a type of
extra-systemic reference, then the English courts clearly take the lead as far as the
quantity of non-mandatory references to foreign law are concerned. Conversely, if
it were to be taken for intra-systemic references, then the English courts occupy last
place.
The direct and displayed judicial use of non-mandatory foreign inspiration
represents, however, merely a small fraction of the overall judicial engagement
with the foreign. Two issues should be highlighted at this stage, in order to put the
low numbers into a proper perspective. First, comparative considerations will be
introduced by the national scholarship without them, however, being recognized
any longer as foreign inspiration in the judicial forum. Secondly, yet another type of
The Quantity 193
indirect comparative exchange is carried out through both systems of European

law, the use of which is, however, mandatory.
The study of Continental jurisdictions revealed, certainly at least as far as the
scholarly and judicial statements were concerned, a clear preference for scholarly
comparisons. Foreign ideas are most welcome in courts. They should nonetheless
first be filtered, discussed, and adapted by the legal scholarship. Such pronounce-
ments could be said to reflect a traditional constitutional balance reached in the
Continental legal tradition over the last two centuries: the development of the law
should be a task for the national legislator and the scholarship, not primarily for the
courts. The former two have been traditionally perceived as the gateways for
innovation and thus also the avenues for comparisons. A different balance is at
hand in English law, where judges have traditionally been recognized as entitled to
further develop the law. The direct use of comparative inspiration thus appears to
be functionally determined: the more judges within the respective system move
towards realizing and/or openly recognizing their function as rule-makers or de
facto legislators, the greater their need for comparative inspiration and perhaps
external argumentative support.1
This different constitutional balance ought to be taken into account when
making any pronouncements concerning the mental openness or closedness of a
legal system and its judges to comparative law. A lot of misunderstanding occurs
when the expectations of an open, discursive, and fully (or even abundantly)
referenced judicial decision in the Anglo-American style are projected onto the
practice on the Continent and the absence of a displayed direct engagement with
foreign materials the judges is then interpreted as a ‘closed mind’ and parochialism.
Such conclusions simply disregard the difference in the structure of internal
discourse within the legal system and the pre-eminence of other gateways for
comparative exchange. To take the point to a hypothetical extreme: it could even
be suggested that the amount of engagement with the foreign might in the end be
greater in a system where courts in their reasoning never refer to any foreign law
but, at the same time, are able to rely on robust national comparative scholarship in
reaching their decisions. There is no need for the courts to directly engage with
foreign materials, as there is a palette of solutions adapted from foreign inspirations
and already discussed in the national scholarship. Thus, considerable exchange is in
fact going on. It just takes on different forms and is carried out through different
channels.
There is yet another, internal differentiation amongst the Continental legal
systems, namely between the mature or stabilized legal systems and those in
transition. Germany and France are examples of the former category; the Czech
Republic and Slovakia of the latter. For all of these, the starting assumption about
the pre-eminence of the legislative and scholarly sphere for the creation and the
further development of the law is correct. However, because of the sudden and
massive changes in the transition countries, the need for a swift legal change in
1 See further ch 11, section 3.

194 An Empirical Epilogue
virtually all areas of law arose overnight. Following the introduced metaphor of
gateways for change, in these countries, the traditional gateways became congested,
as they were not able and sometimes even not willing to process the quantum of
required legal change. It was thus also for the courts, basically out of necessity, to
start directly accessing other sources of inspiration, including foreign materials and
models, and assuming a more active role in carrying out societal change.2
As was seen in the various case studies, both systems of European law play an
important role in the decision-making process of the national supreme courts. How
much national courts openly engage with either one of the systems of European law
or with public international law, ie one of the systems of mandatory foreign law,
varies considerably: from just a handful cases a year to about half of all the cases
decided in England and Wales. It is, however, clear that the quantity of the
incoming European is considerable.
Three points relating to the use of both systems of European law in national
courts should be underlined. First, the engagement with both European systems
and international law is the consequence of a decision of the national legislator (or
even the constitution-maker). If there is any judicial choice detectable within the
realization of this obligation, it is hardly in favour of the foreign, rather to the
contrary. Put succinctly: there is no shortage of judicial neglect or ignoring of
points of European law.3 There is more limited evidence of decisions in which
judges proactively seek points of European law and/or go further than the min-
imum required by the national legislator or by the European courts with respect to
the application of both systems of European law.4
Secondly, within the courts studied, the displayed allegiance to both systems of
European law is differentiated. In systems which have specialized constitutional
review, constitutional courts orient themselves more towards Strasbourg, whereas
courts of general jurisdiction and especially administrative jurisdictions more
towards Luxembourg. This phenomenon can be explained: the law of the ECHR
empowers the constitutional courts while keeping their competences, especially
the monopoly of constitutional review, intact. European Union law, on the other
hand, decentralizes the competence of review of the compatibility of national
laws with EU law. All the national courts became de facto constitutional courts,
gaining powers formerly centralized. For ordinary courts therefore, engaging
with EU law means more competence, should they wish it. For constitutional
courts, EU law means loss of uniqueness.5
2 These phenomena are discussed in greater detail in ch 14, sections 2.2 and 2.3.
3 Further see M Bobek, ‘Of Feasibility and Silent Elephants: The Legitimacy of the Court of Justice
through the eyes of National Courts’ in M Adams and others (eds), Judging Europe’s Judges: The
Legitimacy of the Case Law of the European Court of Justice Examined (Hart 2013).
4 However, some instances could be identified, for example, in the new Member States of the EU
before and shortly after Accession in 2004 and 2007. Generally see: A Łazowski (ed), Brave New World;
The Application of EU Law in the New Member States (TMC Asser 2010).
5 Further see: M Bobek, ‘The Impact of The European Mandate of Ordinary Courts on the
Position of Constitutional Courts’ in M Claes and others (eds), Constitutional Conversations in Europe
(Intersentia 2012).
The Quantity 195
Thirdly, there appears to be a correlation between the amount of the mandatory

foreign sources and the likeliness of any further, non-mandatory foreign inspir-
ation. The relationship is one of inverse proportion: the more mandatory foreign,
the less likelihood of any non-mandatory foreign. The impression that one obtains,
which is corroborated by informal talks with a number of judges and legal secretaries,
is that in Europe today, any available judicial energy will be spent on researching and
navigating within the mandatory foreign. This does not mean that a non-mandatory
inspiration may no longer be useful. It only means that the exponential growth of the
European and international must sources takes away much of the free space and
energy for the may ones. This fact offers a pragmatic explanation of why the use of
non-mandatory sources may appear to be in decline in some systems, when con-
trasted with the situation in the same systems in the past.
This element tends to be underestimated. However, national judges in Europe
today, if they wish to do their job properly, must analyze national law and then
three layers of the mandatory foreign (EU law, ECHR law, and international law,
including their relationship in the particular case, which may often be the most
strenuous exercise) before they may indulge themselves with the study of non-
mandatory foreign inspiration. To take an example: a German court faced with the
question of the public participation in the drafting of a town development plan is
obliged to take into account German administrative law and procedure, and
administrative case law on the matter (both state as well as federal); national
constitutional requirements and the by now elaborate case law of the German
Federal Constitutional Court; German international obligations in this area, in-
cluding amongst others the Åarhus Convention and related materials; applicable
EU law, including directives implementing the Åarhus Convention to which the
EU is also a signatory party; and also the relevant Strasbourg case law. Needless to
say that if indeed having worked its way through all of these layers of mandatory
sources and connecting them together in a coherent way, the (by now presumably
rather exhausted) German court is not likely to start looking into say Austrian,
French, English, or Swiss law and seek additional inspiration there.
Concluding on the quantitative aspect of the judicial use of comparative argu-
ments, it is apparent that the frequency of the external and arguably also internal
use of foreign inspiration varies across the courts and systems studied. This
variation can hardly be said to be caused by one particular factor in the institutional
set-up or particular mental predisposition of one or several judges. It is the
conglomerate of a number of factors which defines the overall characteristic and
mission of a supreme court. The only causal claim6 which can be advanced may be
formulated on a higher level of abstraction, looking at the joint effect of these
factors (eg active parties, presence of skilled support staff, reasonable docket, etc). If
there is time and resources for more advised judicial deliberations at the top of the
national judicial hierarchy, then comparative inspiration will be, in the absence
of political interference or even politically-driven closures,7 a welcomed source of
6 As discussed in ch 3, section 1.1. 7 Further ch 14, sections 1 and 3.

inspiration. If, on the other hand, the supreme court in question is driven into the
opposite direction, ie towards quantity to the detriment of quality, the work of such
supreme court resembles an assembly line styled production of masses of decisions.
Within such institutional settings, comparative as well as other (non-strictly legal)
considerations are likely to remain a luxury judges must do without.
2. The Quality
When looking at the substance of the cases in which any comparative reasoning by
courts is attempted, it is evident that these are important cases, significant for their
novelty, contentiousness, or political sensitivity. This fact qualifies, in a way, the
purely quantitative criterion. Although the total number of the uses of non-
mandatory foreign inspiration might be very low, the inspiration or argumentative
support it brings will typically be used in important cases, where the additional
work appears, for whatever reason or strategy, warranted. At the same time,
however, this qualitative caveat should not be stretched too far, so as to elicit the
impression that comparative reasoning is the standard in significant cases. That is
far from the truth: most of such litigation at the national level is carried out and
concluded without there ever being any non-mandatory foreign materials consulted
or invoked.
The quality of comparative argument or reference as such varies considerably.
Cases in which a court would formulate a fully-fledged comparative argument,
establish points of comparison, define the element with respect to which it
compares, evaluate the findings, and then integrate its acquired comparative
knowledge clearly into its reasoning, are very rare, or rather non-existent. In most
cases, the foreign authority is invoked simply in passing by stating that ‘the same’ is
also true of the legal system in country X, without, however, making clear what ‘the
same’ actually means practically for the case at bar. There is, finally, also no shortage
of purely ornamental references, where it is difficult to discern even any implied
comparative argument or any added value to the reasoning in the particular case.
The latter two categories of judicial uses of comparative arguments are in fact the
rule. In virtually all the cases identified, the references to anything non-mandatory
foreign are indeed simple appeals to external authority. They hardly represent a
substantive comparative argument.8 Moreover, the style of representation of such
foreign inspiration in a judicial decision and its (non-) disclosure also differ across
the legal systems studied. The purposes for which a court drops a reference to a
foreign authority into the text of its reasoning may differ. Sometimes, it may indeed
be for a faithful narrative of process of judicial discovery, disclosing all the sources
that guided the judicial deliberation. Sometimes, however, the purpose might be
limited to an ex post justification, in which the pool of the authority invoked does
not overlap with the materials genuinely considered.9
8 Further see ch 13, sections 2 and 3. 9 This is addressed in more detail in ch 12.
The Theories 197
The empirical studies of the selected European systems also demonstrated a

remarkable stability of historical, cultural legal communities. The analysis of who
refers to whom and who considers which other system as an authority did not reveal
many surprises. The well-known and decades-established patterns of comparative
influence are still very much in place. English courts are most interested in what is
going on in the ‘old white’ British Commonwealth. The attention of French and
German courts is more multi-polar, subject-dependent, in general however limited
to their European (Western) neighbours (in particular neighbours speaking the
same language), the USA, and Canada. The Czech and Slovak situations are
examples of legal colonies, where the legal inspiration is dominated by one strong
neighbour, the identity of which, however, changed quite dramatically on several
occasions in the course of the 20th century.
Authority and its selection for comparisons thus appear to be very conservative.
The often voiced claims concerning ‘global’ judicial communities and ‘global’
judicial mindset or outlook are therefore not empirically warranted, certainly not
in today’s Europe. The opposite appears to be the truth: judicial comparisons are
deeply regional10 and the authority chosen very selective. Two caveats should
nonetheless be added here. First, European ‘regional’ does naturally not preclude
genuine ‘global’ outside of it, ie supreme courts outside of Europe developing truly
global outlooks. Secondly, if Australia, New Zealand, Canada, the USA, and South
Africa, ie selected mostly English-speaking countries, can be said to form them-
selves a ‘global’ community, then English courts have a ‘global’ outlook, even
within Europe. For a number of reasons further explored above,11 however, it is
suggested that exchanges within a centuries-old colonial legal community, which
have over the last decades just mutated from ‘vertical-imposed’ to ‘horizontal-
advised’, can hardly be used for sweeping statements about new ‘global’ trends.
3. The Theories
The various case studies have showed a varying degree of self-proclaimed openness
of a legal system to the external world and foreign inspiration. On the basis of the
respective degree of openness, one could distinguish between dogmatically closed
and dogmatically open systems. The example of a dogmatically closed system in this
study is France. The only sources of law which are allowed to be displayed in a
judicial opinion are national laws, recently enlarged also by European Union
sources and the ECHR. Apart from these, the judicial tradition does not allow
for the display of any other authority. The example of a dogmatically open system is
England and Wales. Here the broad conception of may, ie permissible, sources of
law allows for the incorporation of various other authorities into a judicial decision,
including foreign ones. Finally, the German legal system could be placed as
10 In a cultural rather than a geographical sense, referring more broadly to the ‘Euro-Atlantic’ legal
circle, including also the USA and Canada.

11 See ch 5, sections 4.1 and 4.3.
dogmatically semi-open system in the middle. The prevailing conception is one of
tolerant legality. In such a system, national laws and national constitution are the
primary points of reference. The system, however, allows for a fair amount of other,
non-statutory materials as well, most significantly the legal scholarship.
The distinction between dogmatically open and dogmatically closed systems is
primarily about the display of legal authority in the judicial decision, not about its
actual use. Again, if pushed to a hypothetical extreme, it could be suggested that in
spite of the difference in doctrinal approaches, the pools of authority and the types
of arguments employed by the judges in the various systems might be roughly the
same. In some systems, however, the authority is expressly attributed whereas in
others it is not.
The degree of dogmatic systemic openness is historically determined. The
definition of permissible sources of law is an exercise in political power displayed
by the legislature or the constitution-maker vis-à-vis the judiciary. Amongst the
very first things any new regime is likely to do is to define the applicable law and its
permissible sources. In this way, Continental national legislatures in the late-18th
and early-19th century proclaimed their own exclusivity with varying degrees of
intolerance to anything else: revolutionary France being the strongest example of
exclusivity of national statutes and the complete dominance of the will of the
national legislator.
The degree of dogmatic openness varies with time. It depends on a number of
social, political, or economic factors. A characteristic common to all the Continen-
tal jurisdictions studied is a correlation between the gradual ageing of national legal
codifications and the corresponding opening to arguments, values, and materials
other than statutory ones. There is also a corresponding change in the style of legal
interpretation. The examples of Germany and France neatly demonstrate this
almost dialectic logic. Immediately after the adoption of a new codification, there
is the phase of exegesis, inward-looking notion-building and a period that could be
called textualist. In this phase, it is only the intention of the historical legislator and
the internal logic of the code that matter. Other inputs including comparative ones
are as good as banned, at least in the official rhetoric.
The ageing of the codifications coupled with the social unresponsiveness of the
textualist approaches invite, in the second phase, critical voices of varying strength.
Their interpretative effort is to accommodate legal change and to enlarge the pool
of sources of legal inspiration. These critics typically fail to provide for any general
theory which would gain greater support, mostly because they are too critical and
too decisionist, eventually arriving at the denial of the most precious good any
theory of positive law should be providing, namely certainty and foreseeability.
Such theories wholeheartedly embrace comparative arguments together with a
number of others, such as sociological, psychological, or economic. Such openness
towards other sources is then, however, also detrimental to the acceptance of critical
theories, as it renders the landscape of the legal sources too complex, unpredictable,
and thus unworkable in practice.
Finally, in the third stage, a certain synthesis takes place. The moderate positiv-
istic theories take on board some of the critical voices and open institutionalized
The Theories 199
avenues for legal updates within the system. The driving and repetitive motive is
legal change and its accommodation. This happens through various tools: the
German dissociation of legislative valuations from the intention of the historical
legislator and their replacement by a conjectured ‘contemporary’ rational legislator
is one of them. The French replacement of the historical method with the dynamic
one, teleological reasoning, and the considerations of contemporary social aims
would be an example of another. Their common denominator is that it is no longer
seriously claimed that the text of the code and the intent of the historical legislator
can or even should be the sole and the determining factors in interpreting old codes.
The attention shifts to contemporary standards and current needs of the society,
however these may be named in theoretical terms. In such a framework, compara-
tive analysis becomes one of the potential ways of discerning what the contempor-
ary standards of a rational legislator might be. In this way, mature and stable
political and legal systems allow for moderate change within the process of adjudi-
cation.
The change in the axiomatic openness of a legal system may not be only towards
greater openness. The already described example of the evolution of comparative
law in Central Europe12 readily provides a counter-example of a legal system
virtually sealing itself off overnight and returning, at least verbally, to an extreme
version of national statutory exclusivity, not dissimilar to the French revolutionary
visions at the end of the 18th century.
Finally, irrespective of the degree of dogmatic openness to the display of foreign
non-mandatory sources in a judicial decision, the various national positivistic
theories of legal interpretation foresee and accept arguments out of comparative
analysis. There are obvious doctrinal differences as to the relevant mental box into
which the respective national theories place comparative arguments in judicial
decision-making. There might also be, in individual cases, disagreements as to
the actual use of comparative arguments in the particular case, suggesting that the
court in question misinterpreted the foreign model or got it wrong altogether.
None of the mainstream theories in the various systems studied, however, denies in
itself the acceptability and the usefulness of comparative argument for the judicial
interpretation of law. Equally, in spite of occasional arguments on the proper use of
comparative materials and conclusions to be made therefrom in the individual case,
no outright rejection of comparative arguments is detectable in the courts studied.
The sporadic dispute voiced may be what or how, but not whether or why.
If the respective national theoretical foundations studied and their predictions as
to how the national legal culture is supposed to behave with respect to comparative
reasoning are compared with the empirical findings as to how it actually behaves, it
may be concluded that the established national theories within the mature legal
systems are able to predict what is going on in their backyard. ‘Established’ refers to
Germany, France, and England and Wales. Again, for the specific transitory setting
12 See ch 8, section 4.1. Political closure of a legal system and its implications for comparative
arguments in courts are discussed in a general manner further in ch 14.

in the Czech Republic and Slovakia, the theoretical framework in these countries is
somewhat lagging behind.
Empirical findings of the actual practice of comparative reasoning in the various
national supreme courts are thus compatible with prevailing moderate positivistic
visions of judicial reasoning and legal interpretation. The national supreme courts
are doing nothing which could be said to burst positivistic national frameworks and
signify, as sometimes announced, the dawn of national-based legal positivism. The
effort to define a common ground for a minimalist positivistic vision of compara-
tive reasoning in courts is the subject of the following chapter.
PART III
THE APPRAISAL
11
Comparative Reasoning by Courts:
The Theoretical Playing Field
This chapter focuses on the theoretical underpinning of the use of comparative

arguments in courts. It represents a synthesis of the various national theoretical
approaches outlined in the second part of this book. The aim is to reconstruct a
minimalist positivistic vision of the role and the legitimacy of comparative argu-
ments in judicial decision-making. Furthermore, it is also suggested that the use of
comparative reasoning, at least in the form and to the extent currently carried out in
the legal systems studied, is not only compatible with, but is also mandated by the
existent mainstream positivistic theories.
Two refinements should be added before the debate proper. First, it is not the
aim of this study to align itself with any specific line of positivistic legal thought or
even to claim to elaborate a new one. The term ‘positivistic’ is just used as a
simplistic description1 for a generic vision of the legal system based on the
assumption that law is a self-contained national system of norms, a set of com-
mandments issued by one supreme (legislative) authority. A system defined in this
way is self-referential and self-sufficient. The origin and validity of every norm can
be traced back to the same (ultimate) rule of recognition.2 Second, the views of
judicial function elaborated upon in this chapter originate chiefly from the realm
of Continental legal theory and the style of judicial work within the systems of
statutory law and codes. However, with the avalanches of statutory laws in England
and elsewhere in the common law world on the one hand and the re-evaluation of
the judicial function in the Continental legal system on the other, the traditionally
portrayed gap between the common and the civil law might perhaps not be that
huge in this respect.
1 Thus obviously grossly reducing the depth of the notion and the fact that it encompasses a
number of various strands and schools; for a succinct introduction, see eg: BH Bix ‘Legal Positivism’ in
MP Golding and WA Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory
(Blackwell 2005) or A Marmor, ‘Exclusive Legal Positivism’ in J Coleman and S Shapiro (eds), The
Oxford Handbook of Jurisprudence and Philosophy of Law (OUP 2002).
2 H Kelsen, Reine Rechtslehre (2nd edn, Österreichische Staatsdruckerei 1992) 196ff; HLA Hart,
The Concept of Law (2nd edn, Clarendon 1994) 100ff.

204 The Theoretical Playing Field
1. Judicial Ideologies and Judicial Decision-making

Judicial ideology reflects the values and function in the society a judge is expected to
fulfil. It guides judicial decision-making. It has two dimensions, which naturally
influence each other: the general and the individual. The general one reflects the
prevailing vision of the proper exercise of judicial power within a given society. Its
broader dimension and general shape are defined politically. Its more detailed
content is then set out by the legal scholarship and also a certain esprit de corps
present within the judiciary. The general judicial ideology is imparted to new
judges, in particular in the Continental career judiciary model, in the process of
their training within the judiciary at early stages of their career.3 At the same time,
however, there is a considerable degree of choice left to individual judges, which
individual ideology or mindset they will choose to uphold. There will typically be a
number of individual positions acceptable within the range of the general ideology.
At the level of ideal or general models, Jerzy Wróblewski distinguished4 three
types of judicial ideologies:
(i) the ideology of bound judicial decision-making;
(ii) the ideology of free judicial decision-making; and
(iii) the ideology of legal and rational judicial decision-making.
The ideology of bound judicial decision-making is rooted in the legal positivism of
the 19th century. It values liberty, legal certainty, and democracy by binding judges
to the statutory law and thereby safeguarding the separation of powers. It presup-
poses the completeness and the seamlessness of a legal order. Judges should thus
have no need to supplement the system of coherent internal norms by any external
authority. Judicial decision-making is the deduction from or even the mechanical
application of the pre-existing legal rules. A judicial decision thus must always be
justified under an existing statutory or other legal rule.5
The ideology of free judicial decision-making defines itself as a reaction to the
positivist ideology of the bound judicial decision-making. It does not suggest that
judges are not bound by the valid (statutory) law. It merely submits that there
cannot be any clear distinction between the application and the creation of law.
Valid legal norms are just the limits within which judges create law every time they
apply it. The ideology of free judicial decision-making gives great importance to the
judge-made rules and the judge-made law. In an extreme position, it is only the law
expressed in a decision of a court which is the genuine source of law; statutes play
3 For a comparative discussion on the socializing role of the judicial community, see eg: J Bell,
Judiciaries within Europe: A Comparative Review (CUP 2006) 13–34 and the respective country
studies.
4 J Wróblewski, The Judicial Application of Law (Kluwer 1992) 265ff. Similarly eg: H Uyterhoeven,
Richterliche Rechtsfindung und Rechtsvergleichung (Stämpfli 1959). A summary is also provided by

R Siltala, A Theory of Precedent (Hart 2000) 3ff.
5 Wróblewski (n 4) 273–81.
The Need for Extra-systemic Inspiration 205
no important rule in the judicial decision-making. At best, they are there to uphold
the positivist myths of legal stability. The ideology of free judicial decision-making
attacks, with a varying degree of radicalism, two key assumptions of the bound
ideology: namely the completeness of the normative legal space and the vision of a
limited number of sources of law.6
The ideology of legal and rational judicial decision-making represents an effort to
strike a middle ground between the two opposing views. It rejects the formalized
visions of the bound judicial decision-making. At the same time, however, it also
rejects the irrational freedom and the ex ante indeterminacy of the free decision-
making. The compromise effort is carried out by freeing judges from the grip of the
codes while making them subject to values and principles, such as legality, consist-
ency, and rationality.7 The solution is thus to reaffirm the principle that judges are
bound by the will expressed by the legislator. Yet this boundedness is positioned one
level higher up in the level of abstraction: judges are not necessarily bound on the
level of black-letter law, but at the level of principles and values expressed in that law.
The categories distilled by Wróblewski find their historical inspiration in the
evolution of legal theories in the jurisdictions previously studied, in particular
Germany and France. In the form of ideal models, Wróblewski restated the tension
between positivist approaches of the 19th century and their challenges from the
beginning of the 20th century, which led to the elaboration of the more current
theories of judicial interpretation. It is the national varieties of the ideology of legal
and rational judicial decision-making that can be said to represent the positivist
mainstream in Europe today.8
There obviously is no clear borderline between the bound and the free judicial
decision-making. The pure visions of these categories simply represent two extreme
ends of a continuous line. They are, however, helpful as ideal models in discerning
the impact the judicial ideology has on judicial readiness to reach beyond the national
legal system and use, amongst others, also non-mandatory foreign authority.
2. The Need for Extra-systemic Inspiration
The judicial ideology prevailing within a legal system is important for the theor-
etical underpinning and legitimacy of the use of comparative arguments. Its
importance can best be demonstrated with respect to the radically different ap-
proaches each of the ideologies takes vis-à-vis two scenarios in which comparative
arguments are used most in courts: the closing of gaps in law and carrying out
societal updates.9 With only slight exaggeration, it might be even suggested that all
6 Wróblewski (n 4) 284–304. 7 Wróblewski (n 4) 305–13.

8 Exegetic school and the Begriffjurisprudenz being the examples of bound judicial decision-making,
whereas challenges mounted by Gény or Saleilles in France, or Ehrlich, Kantorowicz, and others in
Germany being instances of free decision-making. See further ch 6, section 2 and ch 7, section 2.2.
9 In similar vein (using different terminology to refer to essentially the same categories): T Bingham,
Widening Horizons: The Influence of Comparative Law and International Law on Domestic Law (CUP
2010) 8ff.
the instances of useful, ie not just ornamental or accidental, use of comparative
reasoning identified in the individual case studies carried out in the second part of
this book fall within one (or both) of these categories.
2.1. Gaps in Law

For a judge adhering more to the vision of bound judicial decision-making, the
national legal system is a seamless and autonomous network of commands issued by
the national legislator. Legislative valuations are the determining ones. Should one
even recognize the mere existence of any gaps in law, they can be filled by internal
analogy from within the system, still respecting, as much as possible, the valuations
made by the legislator. The national normative system is autarkic and there is no
need for any external authority. Such a vision is not challenged by externally created
rules applicable within the system, such as EU law, the ECHR, or public inter-
national law, as the domestic application of these systems is expressly allowed for by
the same national legislator.
The more extreme version of the ideology of bound judicial decision-making
denies the very existence of gaps in law. The legal order is a coherent and consistent
whole. There are specific general gap-preventing rules contained in the respective
statutes and also those inherent in the respective areas of the law, for instance the
prohibition of analogy in (substantive) criminal law or in tax law. These are supple-
mented by two general rules: first, individuals are free to do whatever the law does not
expressly prohibit. Second, the state and public authorities can act if and only if they
have an express statutory authorization. Logically speaking, these general rules always
divide the entire legal landscape into the allowed and the prohibited areas. If a law
limiting the scope of individual activity is unclear, ie it could be argued that there
might be a gap, the general freedom-clause closes the gap at the moment of the
interpretation of the rule in favour of the individual. Thus, there is no gap, at least not
at the moment of the application of the law.10
This, perhaps somewhat scholastic reasoning, is the consequence of a structural
problem inherent in the argument denying the existence of any gaps in the law:
namely that the ideological position is not matched with the appropriate insti-
tutional design. Or, more precisely, the originally united ideology and institutions
have diverged. The extreme visions of bound judicial ideology could genuinely work
only if they were implemented at the institutional level as well. This would require
internal inconsistencies or gaps to be filled by, for instance, a legislative reference or
at least the possibility of a request for authoritative interpretation, as was the case in
older codifications.11 In this way, legislative exclusivity in law-making could perhaps
10 See generally: P Foriers, ‘Les lacunes du droit’ in C Perelman (ed), Le problème des lacunes en droit
(Bruylant 1968) 14–15 or C Huberland, ‘Les mécanismes institués pour combler les lacunes de la loi’,
idem, 31–66. See also V Knapp, Teorie práva (Theory of Law) (CH Beck 1995) 66–7, who claimed
that there might be gaps in a statute but never gaps in law.
11 Examples of various forms of authentic interpretation by the legislature or référé legislatif can be
found in historical codifications, originating mostly from the time of absolutistic monarchies or fresh
post-revolutionary systems which asserted unreserved primacy of the Parliament or the Monarch.
be preserved. The institutional choice of modern codifications has become, how-

ever, the opposite one: it is the judge who must decide in any individual case,
irrespective of whether there is any statute or not, with no possibility of a legislative
reference. As Article 4 of the French Code Civil famously states, judges must decide
even if the law is silent, vague, or lacking.12 Otherwise they expose themselves to
disciplinary sanction for denial of justice.
More recent moderate positivistic theories acknowledge the existence of gaps in
law.13 Gaps typically result from either a lack of regulation, or extant but logically
inconsistent regulation.14 When filling the gaps, the more elaborate German
scholarship in particular insists on judges being still bound by the overall valuations
expressed in the original law and in the legal order as such. Judges are supposed to
extend the existing valuations by analogy as far as possible to new facts or realities.
The unanswerable question then becomes, how far can one reasonably stretch this
distance effect of legislative valuations and, when are judges still reasoning by
analogy within the legal system and when have they already left it?
However, if the existence of gaps in the law is accepted, it will necessarily also be
accepted that they have to be filled with the help of some additional, subsidiary
materials. These might be of different origin: extra-systemic but legal materials or
entirely extra-legal sources and arguments (moral, sociological, economic, political,
and other writings). Reasoning with comparative sources is one of the potential
extra-systemic arguments, similar to reasoning with scholarly writings, non-legal
normative systems, and/or other considerations. In this way, comparative consider-
ations may be integrated into the positivistic framework as an acceptable source of
inspiration.
A detailed discussion with respect to 18th-century France, Austria, and Prussia is provided by
M Miersch, Der sogenannte référé législatif (Nomos 1999). See also M Gläser, Lehre und Rechtsprechung
im französischen Zivilrecht des 19. Jahrhunderts (Klostermann 1996) 4–12.
Interestingly, similar constitutional arrangements could also be found in some of the socialist
countries, which replaced the principle of separation of powers by the ‘principle of the unity of state
power’. Marxist dogma considered the national Parliament (ie ‘People’s Assembly’) not as one of the
powers in the state, but the supreme power in the state, to which all the others were subordinate. In
institutional terms, this brought about a special procedure of ‘request for authentic interpretation’,
which could be addressed to the People’s Assembly by any court or other state body. See generally: V
Šimíček and J Kysela, ‘Ústavní právo’ [Constitutional Law] in M Bobek and others (eds), Komunistické
právo v Československu—Kapitoly z dějin bezpráví (Communist Law in Czechoslovakia—Chapters from
the History of Lawlessness) (Masarykova univerzita 2009) 315ff.
12 A similar provision is, however, contained in a number of other Continental codifications and its
offspring. See eg: A Meier-Hayoz, Der Richter als Gesetzgeber (Juris-Verlag 1951) 221–3, who gives
examples of more than a dozen of such codifications.
13 See, eg: A Tunc, ‘La méthode du droit civil: Analyse des conceptions françaises’ (1975) 27 RIDC
817; J Gardner, ‘Concerning Permissive Sources and Gaps’ (1988) 8 OJLS 457; J Raz, Practical Reason
and Norms (OUP 1999) 87–8; N MacCormick, Rhetoric and the Rule of Law: A Theory of Legal
Reasoning (OUP 2005) 207ff. A detailed elaboration of the German approaches is provided, in
particular, by CW Canaris, Die Feststellung von Lücken im Gesetz (2nd edn, Duncker & Humblot
1983).
14 A number of other categories could naturally be added here—see, apart from the works quoted in
the previous note, also A Peczenik, On Law and Reason (2nd edn, Springer 2009) 18–20.
2.2. Societal Change

Societal change represents a more complex scenario, especially from the point of
view of legitimacy. Even within the mental framework of the bound ideology
of judicial decision-making, it is possible to accept the need to fill in the gaps
in the law. It merely means accepting that the legislator made no value choice
but that, at the same time, by prohibiting a denial of justice, the legislator
requires the judges to decide anyway. Conversely, to accept that judges are also
entitled to carry out reinterpretation of existing law and/or go against the will
of the legislator requires a much greater leap of faith. In such a situation, judges
in fact overrule existing and sometime perhaps even clear valuation made by the
legislation, which they nonetheless consider, for whatever reasons, no longer
appropriate.15
A clear text of the law traditionally formed the outer limit for any judicial law-
making. In Continental writings, a distinction has been drawn between judicial
decision-making within the law but outside its clear text (praeter legem) and
decision-making against the law (contra legem).16 The former might be possible,
the latter is out of bounds. The appropriate forum for new societal choice and
change which might go against the existing law (contra legem) ought to be the
legislative one.
This division cannot be said still to hold today. It is generally accepted, at least
within Europe, that judges may reinterpret the law in accordance with changing
societal circumstances or even disregard previously expressed legislative will. There
are a number of reasons why ideas, which were, in the scholarship produced at the
beginning of the 20th century considered outrageous,17 are now a part of the
mainstream. Four will be mentioned here:
First, in the course of the 20th century, the intention of the historical legislator
ceased to be the word of God. The ageing of codes and the necessity for legal change
gradually detached the will of the historical legislator from the contemporary
interpretation of the law, thus making current societal considerations the dominant
15 René Savatier called such situations ‘hollows’ or ‘cavities’ (les creux) in law as opposed to mere
gaps (lacunes)—see R Savatier, ‘Les creux du droit positif au rythme des metamorphoses dúne
civilisation’ in C Perelman (ed), Le problème des lacunes en droit (Bruylant 1968).
16 See, eg: Meier-Hayoz (n 12) 33ff and the (mostly German) literature cited therein. Interestingly,
this Continental distinction has now been introduced into EU law by the Court of Justice who set it as
one of the limits to EU-conform interpretation (indirect effect) in Case C-212/04, Adeneler [2006]
ECR I-6057 [110] or Case C-268/06, Impact [2008] ECR I-2483 [100].
17 Hermann Kantorowicz wrote in 1906 under the nom de plume ‘Gnäus Flavius’ in his ‘Der
Kampf um die Rechtswissenschaft’ that judges are entitled to disregard the text of the law if, according to
their free and dutiful conviction, it appears to them that the legislator could not have reasonably
adopted such regulation. The publication caused an outrage and was condemned as extremist.
Kantorowicz subsequently expressly retracted his statement that it was possible for judges to decide
contra legem, even if they felt morally compelled to do so. See generally: V Grosswald Curran,
‘Rethinking Hermann Kantorowicz: Free Law, American Legal Realism and the Legacy of Anti-
Formalism’ in A Riles (ed), Rethinking the Masters of Comparative Law (Hart 2001).
part of the process of interpretation.18 The reason of the law became dissociated
from the will of the (historical) legislator.19
Secondly, the 20th century, in particular its second part, witnessed an expansion
of the judicial power and judicial review. The judicialization20 of all aspects of life
has brought new questions and areas of regulation and before courts. The expan-
sion of judicial review to areas previously thought to be of sovereign legislative or
executive choice in administrative law or elsewhere might be one of many examples
in this respect. Another is the omnipresence of constitutional discourse and human
rights; there is virtually no legal question which cannot be put to judicial review
framed as a human rights issue.21 As a consequence, the judicial role became more
critical, frequently expressly aimed at reviewing the will and the actions of the
legislator.
Thirdly, on the institutional plane, the advent of constitutional courts as strong
players independent of the legislature and, in models of specialized concentrated
review, of ordinary courts as well, deepened and accelerated the first two outlined
characteristics. Most of the constitutional courts established after the Second World
War were set up as express guardians of the new (democratic) constitutional vis-à-
vis the legislator. By their interaction with ordinary courts of all levels, they
gradually also altered the work and self-perception of other courts within their
systems.22 In consequence, the standard methodological works of the end of the
20th century now contain concepts like constitutionally-conform interpretation,
balancing, or proportionality, which, some way or another, are designed to control
or alter the clear but unconstitutional legislative will.
Finally, the review and sometimes even the denial of the clearly expressed will of
the national legislator mandated by the both systems of European law also con-
tributed to these developments. Direct effect and primacy of EU law over national
law, including the national constitution, can be mentioned as examples of perhaps
the most outright judicial denial of national legislative will; but other tools,
including conform interpretation, are also put in place to alter the will of national
legislator by the fiat of interpretation. In similar vein but in a slightly more indirect
manner, judges may also rely on the ECHR and the interpretation accorded to its
provisions by the ECtHR for reinterpreting national laws.
18 See ch 10, section 3 and in the individual case studies earlier. See also H Fleischer, ‘Comparative
Approaches to the Use of Legislative History in Statutory Interpretation’ (2012) 60 AJCL 401.
19 Further see, eg: B Frydman, Le sens des lois: histoire de línterprétation et de la raison juridique (3rd
edn, Bryulant 2011), in particular 535ff or generally K Tuori, Ratio and Voluntas: The Tension between
Reason and Will in Law (Ashgate 2011).
20 The term ‘judicialization’ here is used as a simple, neutral term, meaning simply that more and
more issues (both qualitatively as well as quantitatively) are being litigated before courts.
21 This is the reason why one of the fathers of modern constitutionalism, Hans Kelsen, firmly
rejected the idea that constitutional courts should be entitled to apply abstract constitutional and
human rights notions, such as equality, rule of law, democracy, etc. In his view, this would give
constitutional courts absolute power—see H Kelsen, ‘Wesen und Entwicklung der Staatsgerichtsbar-
keit’(1929), reprinted in H Klecatsky and others (eds), Die Wiener Rechtstheoretische Schule. Schriften
von Hans Kelsen, Adolf Merkl, Alfred Verdross. Band 2. (Europa Verlag 1968) 1813ff.
The limits have thus clearly shifted. The practice of courts carrying out updates
through reinterpretation of existing law is not infrequent, especially at the level of
constitutional and supreme adjudication. In fact, the last two categories mentioned
in the list authorize national judges to go much further and overwrite even recent
expressions of national legislative will, simply because they failed to take proper
constitutional considerations into account or are in violation of the requirements of
either of the systems of European law.
Against such background, reinterpreting older laws in line with changing
social circumstances is thus hardly contested in Europe today. To find the
correct balance between the necessary minimalist legal update and already
problematic activism is an exercise in political sensitivity, for which there is no
blueprint.23 Pragmatically speaking, there is only one yardstick: the ultimate
social acceptance of the decision by other political players within the system, and
their compliance.
Similarly to filling gaps in law, also when carrying out societal updates, judges
still need some inspiration and/or support for their decision-making. National law
and national legislation can hardly provide much guidance in similar cases, as they
are themselves subject to critical review. By necessity therefore, the substantive
inspiration is likely to come from outside of the legal system itself, yet again
opening the doors to comparative inspiration, as well as other extra-systemic
arguments.
3. Judges as Legislators
The argument presented so far maintains that comparative reasoning and moderate
positivistic theories are compatible. There are instances in which it is acceptable for
judges, who are obliged to decide, to reach outside the national normative system
for inspiration. This typically happens in two situations: first, there is a gap in law
which cannot be closed by an internal analogy. Secondly, judges are called to carry
out societal change and reinterpret older provisions so as to bring them in line with
contemporary standards and expectations.
Comparative analysis in judicial reasoning mostly appears when judges function
as legislators. These are situations when the existing national normative framework
is perceived as containing lacunae or as otherwise unsatisfactory and judges step
into the shoes of legislators and start creating new rules going beyond the existing
23 Lord Devlin once made the distinction between ‘activist’ and ‘dynamic’ judicial law-making. The
key is the consensus. Activist law-making means taking up an already emerged and consensus-driven
idea and turning it into law. Dynamic law-making means taking up an idea created outside the
consensus, ie one not (yet) supported by society as a whole, turning it into law, and then propagating it.
Devlin admits that there are instances in which judges should be activist. But they should never be
dynamic. In Devlin’s eyes, dynamic law-making needs enthusiasm. As he adds, ‘Enthusiasm is not and
cannot be a judicial virtue. It means taking sides’. Lord Devlin, ‘Judges and Lawmakers’ (1976) 39
MLR 1, 5.
Judges as Legislators 211
national normative framework. In both of these categories, the judicial technique

changes: judges are no longer, or perhaps not so closely, bound by the existing laws
and value choices made by the domestic legal system. The judicial technique draws
closer to the legislative one. A rational legislator as well as a rational judge-qua-
legislator seeks an outside experience and/or authority for a solution chosen. This
lies at the very heart of the judicial use of comparative arguments: once judges
engage in a comparative exercise, they do so while behaving as de facto legislators,
not as judges.
Once the modern mainstream theories accepted that some degree of judicial
legislating is inevitable, the focus then shifts to the question what controls can put
in place on judicial law-making. One of the most elaborate visions of the method-
ology of controlled judicial legislating can be perhaps found in the Swiss legal
scholarship.24 The impetus for this scholarly attention came with the, for its time
rather revolutionary,25 express recognition of the existence of judicial law-making
in Article 1 of the Swiss Civil Code.26
The key limitations imposed on judicial law-making in the Continental systems
are the requirements of rationality and persuasiveness, contextualized within and
aided by national secondary legal sources, in particular the legal scholarship. The
balance struck is thus close to the already discussed compromise introduced by
Wróblewski in his ideology of legal and rational judicial decision-making: to
accept judicial law-making as a necessity but to subject it to a number of further
limiting requirements. Moreover, judges are still bound at a higher level of
abstraction: at the level of principles and values expressed in the national legal
system as such.
When do judges start engaging in de facto law-making? With respect to statutory
interpretation, this may be captured by the required and idealized judicial method,
prevailing in the Continental systems with respect to sources of law and legal
reasoning.27 When solving a case, judges are obliged:
(i) to interpret and apply the statute and any relevant legislation of whatever
legal force;
(ii) to consider relevant previous case law, national and European;
24 See especially: Meier-Hayoz (n 12) and Uyterhoeven (n 4).

25 The necessary occurrence of gaps in a codification was recognized already by the fathers of other
great codifications of the 19th century, including Portalis in his ‘Discours préliminaire’ to Code civil
1804. See ‘Titre préliminaire, De la publication, des effects ed de lápplication des lois en général,
présentation au Corps législatif, exposé des motifs par le conseilleir dÉtat Portalis, 4 ventôse an XI’,
reprinted in PA Fenet, Naissance du Code civil: An VIII–an XII—1800–1804 (Flammarion 1989)
89–133.
26 Schweizerisches Zivilgesetzbuch vom 10. Dezember 1907, published as SR 210. First Article
reads:
1 The law applies according to its wording or interpretation to all legal questions for which it contains a
provision.
2 In the absence of a provision, the court shall decide in accordance with customary law and, in the
absence of customary law, in accordance with the rule that it would make as legislator.
3 In doing so, the court shall follow established doctrine and case law.
27 Generally eg: Peczenik (n 14) 260ff.
(iii) if there is no rule in either of the previous categories, to decide by internal
analogy from within the system, applying all the tools for gap-filling and
internal consistency as the system provides;
(iv) if the case cannot be solved on the basis of any of the previous steps, or the
arguments drawn from them are contradictory or too weak, additional
permissible materials, internal as well as external, may be consulted, such
as the legal scholarship, foreign inspiration, arguments from other norma-
tive non-legal systems, etc.
For the purpose of this study, the key moment is the passage from step three
towards step four. It is the moment in which judges step outside of the domestic
normative legal system, declaring its internal tools to be insufficient for solving the
question at hand. This moment is significant as it means a number of changes in
the requirements laid on judges and their reasoning. First, the character of the
authority changes from binding to persuasive, from a must to a may source.
Secondly, this carries with it a change in the selection of the authority: whereas
in the first two steps, judges must apply all the relevant authority, in the fourth step,
the authority is necessarily selective. This alters, thirdly, the requirements for the
standard of reasoning and justification. With respect to must sources, the reasoning
must be conclusive; with respect to the may sources, it only needs to be rational and
defendable. Furthermore, the choice with respect to may sources will be by
necessity selective.
4. The (Positivistic) Limits of Comparative Reasoning by Courts

Within the methodological limits outlined in the previous section, current positiv-
istic approaches accept comparative arguments as one of the possible sources for the
interpretation of domestic laws. Using a comparative argument and referring to
foreign, non-mandatory authority in such cases is, however, subject to a number of
constraints the system places on external authority, or more precisely perhaps, on
the appearance of arguments out of external authority. There is quite some latitude
in the way a comparative argument can be structured and integrated into a judicial
decision. There may also be a great difference in the role a comparative argument
genuinely plays in the judicial decision-making: whether it really intellectually
pushes a judge to consider the solution eventually adopted or whether it has just
decorative function and is added for ornamental reasons at the polishing stage after
the question at bar is already decided. Finally, every legal system tends to have its
own, typically quite formalized, set of rules and requirements concerning the
formal structure and appearance of a judicial decision.
However, in spite of all these factors, it is suggested that there still might be an
overreaching common ground as to how a comparative argument will be framed in
order to meet the expected positivistic format of integration of extra-systemic argu-
ments into a judicial decision. To push the argument to an extreme: irrespective of
The (Positivistic) Limits of Comparative Reasoning 213
the weight the comparative inspiration genuinely had for the decision-making
court, the external façade of the decision always claims that comparative arguments
are:
(i) persuasive only, but never binding;
(ii) subsidiary, never controlling;
(iii) additional, never free-standing;
(iv) just defendable and by necessity selective, never exhaustive.
The argument concerning the external appearance of a comparative argument
within the positivistic framework is based not only on the axiomatic and dogmatic
predictions of the various national doctrinal frameworks studied in the previous
part of this book, but also on empirical study of the decisions using comparative
arguments. All the decisions identified in the five jurisdictions studied adhere to
such a positivistic construction.
This work refrains from any normative claims as to whether this is good, bad, or
whether it should be reconsidered altogether. Its claim is much more modest:
comparative reasoning serves the internal needs of a legal system for gap-closing or
renewal. In the way it is currently being carried out in the supreme jurisdictions
studied, it is fully reconcilable with moderate positivistic theories of legal interpret-
ation and judicial function.
4.1. Persuasive, never Binding

Foreign law, which is not expressly incorporated into the national legal system and
made binding, is of persuasive value only. Persuasive authority can be any material
whatsoever attracting adherence as opposed to obliging by virtue of its formal
status.28 It appeals to the substantive reason and rationality of the solution and
choice encapsulated therein, not to its quality as a formalized binding legal source
expressly recognized by the legal system.29 Binding authority is primarily content-
independent: a court must follow a valid statute or a precedent created by a higher
court within the same judicial hierarchy even if it does not agree with its content.
Conversely, persuasive authority is primarily content-dependent: only substantive
reason encapsulated within the material in question may convince an actor to
follow. The word primarily inserted into both definitions is important: the real life
of authority in courts tends to be a mixture of both, neglecting neat jurisprudential
categories. There can be binding authority which hardly persuades on its substance
or persuasive authority which generates allegiance in fact by virtue of its source
(author) and not by its content. In the former category, judges may avoid following
binding authority by its narrow interpretation leading in fact to its reinterpretation.
The latter situation, ie when what persuades to follow a non-binding authority is its
28 HP Glenn, ‘Persuasive Authority’ (1986–1987) 32 McGill LJ 261, 263.

29 Generally RS Summer, ‘Two Types of Substantive Reasons: the Core of a Theory of Common-
Law Justification’ (1977–1978) 63 Cornell LR 707.
author and not content, is quite common in the area of comparative reasoning by
courts.30
The persuasive or optional nature of the authority has two consequences: first,
the material serving as authority is not a formal source of law. It is not a binding
authority, a must material. This means that, second, it is perfectly acceptable for a
judge to disregard such material completely. Even a judge uninterested in anything
foreign can thus be deciding a case from the point of view of national law correctly,
provided that there is no mandatory use of foreign law involved.
Binding authority limits judicial discretion. Persuasive authority inspires. One of
the deeply-rooted myths about the Continental legal systems is that these systems
are not really able to work with persuasive authority. They would be trapped in a
bipolar vision of the world of law, dividing all materials into the binding versus
non-binding dichotomy and taking into account only the binding ones. If such a
vision was ever correct, it is a long time gone. Already some time ago, comparative
studies31 evidenced that the concept of persuasive authority is not limited to
common law systems. The difference is rather that in some systems, the influence
of persuasive materials it not openly acknowledged and discussed in judicial
decisions. This does not, however, mean that such considerations are irrelevant
for the judicial mind. Additionally, the comparative study of many hundreds of
judicial decisions carried out for the purpose of this work demonstrated that there is
a range of persuasive materials being used by judges in the Continental systems.
Sometimes such inspiration is directly attributed. Sometimes it is evidenced only
indirectly, rarely if ever appearing in the decision itself. This does not, however,
imply the inability to understand and work with persuasive materials.32
Finally, the absence of any binding force of foreign law in cases where its use is not
mandatory also means that it has no normative quality. Yet again, this is the logic
of two different sets of norms, which are in no hierarchical or other connection:
30 This point is discussed further in ch 13, section 2.2. For these reasons, the critique raised against
the notion of ‘persuasive authority’ by F Schauer in ‘Authority and Authorities’ (2008) 94 Virginia LR
1931, 1940ff, included also in Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard
University Press 2009) 67–75, fails to convince. Schauer creates two idealized and sealed-off categories,
stating that the use of a source can be either persuasive or it can be authoritative, but it cannot be both
at the same time. Such scholastic argument, however, neglects the fact that in judicial reality, the two
categories are about primary approach to sources, which tends in fact to be corrected by other
consideration: persuasion within formally binding authority has an impact on judicial interpretative
approach and, conversely, it is not excluded that persuasion with respect to non-binding sources
follows from the informal status of the author, not the content (eg a Czech court copying a solution
from Germany because it is the German Federal Constitutional Court which said so, or a court
choosing a solution advocated by Professor X in her academic writings because it is Professor X from
the University of Oxford).
31 See, eg: N MacCormick and RS Summers (eds), Interpreting Statutes: A Comparative Study
(Aldershot 1991) and N MacCormick and RS Summers (eds), Interpreting Precedents: A Comparative
Study (Aldershot 1997).
32 Cf, eg: the rather gloomy predictions made in Z Kühn, ‘The Application of European Law in the
New Member States: Several (Early) Predictions’ (2005) 3 GLJ 565 with respect to the inability of CE
judges to use persuasive arguments, comparative authority, or reason out of general principles of law.
For a disagreement see: M Bobek, ‘On the Application of European Law in (Not Only) the Courts of
the New Member States: “Don’t Do as I Say”?’ (2008) 10 CYELS 1.
The (Positivistic) Limits of Comparative Reasoning 215
the ‘ought’ of the foreign system is just an ‘is’ in the domestic. The foreign ‘ought’
has no normative relevance for the domestic ‘ought’. It functions just as an empirical
fact about a social phenomenon (legal regulation) in a different normative system.
Arguing out of a foreign model is, from the point of view of domestic legal norms,
just an empirical argument.
Such a vision is, however, perhaps entirely correct only when establishing the
content of a foreign rule, not as far as its ultimate value for the domestic legal system
is concerned. Put very simplistically, judicial reasoning can be sketched as a type of
syllogism: premisa maior, ie the first premise, is the applicable law. Premisa minor, ie
the lower or the second premise, are the facts of the case. Conclusion is the legal
solution of the given dispute. When judges start behaving as legislators and look for
extra-systemic foreign inspiration, it is because they do not know what actually the
first premise, ie the applicable law, is. The use of a comparative argument then
contributes to the definition of the applicable domestic law. Eventually therefore, a
foreign solutions will be accorded, via judicial fiat, indirect normative relevance in
the domestic law.
4.2. Subsidiary, never Controlling

One of the crude distinctions with respect to the weight of an argument in judicial
reasoning might be between a controlling (conclusive) and a confirming (sub-
sidiary, auxiliary) argument. The former type of argument provides sufficient
reason for a judicial decision of a certain type being rendered; the latter is only
one amongst other arguments, on its own neither sufficient nor necessary in order
to reach the conclusion in question.33 An example of a comparative argument as a
controlling argument would be for instance: ‘Our decision will be A, because the
court Z in the country Y said A.’ An example of the comparative argument as
supportive only would be: ‘Our decision is B because our constitution (most likely)
says B, the general principles of law hint also in the direction of B [ . . . ] and, by the
way, the same approach was adopted by the court Z in the country Y.’
The subsidiary character of a comparative argument follows from its status as an
extra-systemic argument within the positivist judicial mindset. Comparative argu-
ments may come into play if and only if the previous argumentative steps, including
the use of all must sources within the legal system and the tools for internal gap-
closing, did not lead to any result or, more likely, to a number of possible results.
Within such a framework, auxiliary materials are consulted and their respective
weighting and discussion eventually tilts the balance in favour of one or the other
solution. The key point is, however, that this tilting may happen only within the
limits set by the must sources. From this point of view, extra-systemic normative
arguments are just auxiliary.
33 Or, in the terms of Joseph Raz, controlling arguments are exclusionary reasons, whereas
confirming or subsidiary arguments are all other reasons for action of different weight. See Raz
(n 13) 35ff.
The set of subsidiary extra-systemic arguments is a non-closed one and without,
as in the case of the set of must sources, any formalized hierarchy. Any argument
which may appear, in the legal and cultural conditions of the respective system in
question, to be of some persuasive value may be used: these include arguments of
legal scholarship, arguments of comparative law, arguments taken from other
normative systems such as religion or ethics, sociology, economics, and others.
4.3. Additional, never Free-standing

The fact that non-mandatory comparative argument never appears as a free-
standing argument is in a way essentially a restatement of the previous point:
only a controlling argument is able to provide a conclusive reason for a decision
on its own. Conversely, subsidiary or auxiliary arguments come in bundles. They
mutually support each other and together, they give weight to the reasoning
adopted by the court.
Comparative reasoning always provides just additional reasons within a bundle
of auxiliary arguments of whatever origin: legislative, judicial, or scholarly. This fact
needs to be restated separately, especially with respect to, as aptly put by John Bell,
‘the common lawyer’s obsession with rare cases in which a single decision provides a
binding or an exclusionary reason for a decision’.34 Nothing is further from both
the positivistic visions of judicial reasoning outlined here as well as the real
operation of comparative arguments, than the idea that a single decision of a
foreign court, provided its nature is non-mandatory, could provide sufficient reason
for adopting a certain decision domestically.
The overstatement of the role of single foreign precedents for national decision-
making has deeper roots, going back to the conceptual differences concerning the
work with case law. On the one hand, to Continental lawyers, the fact that a single
judicial decision, even if issued by a supreme court, carries only limited weight, is
intuitive, embedded within the understanding of the judicial function itself. It is
primarily the bundle of individual decisions going in a certain direction which
carries weight, in the form of ‘jurisprudence (bien) établie’, ‘ständige Rechtspre-
chung’, ‘giurisprudenza costante’, ‘vaste rechtspraak’, and their equivalents in other
Continental systems. On the other hand, common law lawyers tend to overstate the
importance of single precedent in the context of purely national judicial decision-
making. They neglect the fact that precedents also come in groups, providing
context for each other.35 Hard cases, in which comparative inspiration would
typically be sought, are never decided only on one single precedent. This common
law misperception is then, however, projected onto the work with ‘foreign prece-
dents’, thus generating a distorted picture about the genuine argumentative weight
of comparative inspiration.
34 J Bell, ‘The Argumentative Status of Foreign Legal Arguments’ (2012) 8 Utrecht LR 8, 11.
35 Bell (n 34) 10 makes the parallel to threads of fibre. On its own, a single thread cannot hold up
much weight, but twisted in combination with other threads, they form a cord which can carry a
substantial weight.
Summary: Of Old and New Hats 217
In practice, foreign inspiration will always be cited in bulk with other materials,
typically tucked away somewhere towards the end of the court’s reasoning, and
naturally only after the domestic must sources have been dealt with.
4.4. Defendable and Selective, not Exhaustive

The open-ended nature of extra-systemic arguments finally means that they can
never be comprehensively covered. The argument advanced on the basis of them is
by necessity selective and illustrative, never exhaustive. There will always be a
possible counter-argument and possible counter-example which could be made
on the basis of the sheer amount of potential extra-systemic materials providing
possible inspiration. However, within the reasoning at the level of may materials,
the judges are not obliged to conclusively cover all the possible arguments and all
the possible sources. Their duty is just to choose a defendable solution, which is
reconcilable with the must sources within the domestic legal framework and which
appears persuasive. The additional duty in some legal systems might be to demon-
strate that judges carried out the expected type of considerations and that they drew
inspiration from the type of additional materials they were expected to refer to.
Again, the expectation would never be one of demonstrating the exhaustion of all
the possible authority, but merely being inspired by the appropriate and socially
acceptable type of authority.
The difference in selectivity and standard of reasoning can be demonstrated in
the following way. If a judge omits a binding (must) source, for instance a later
amendment to the law they applied in the first place, which substantively changes
the legal position, the decision is flawed and will be annulled on appeal. If a judge,
however, relies in a decision only on subsidiary arguments drawn from the scholarly
writings of authors A and B, but completely disregards the (perhaps even opposing)
views of authors C and D, the decision, provided that it is reconcilable with the
framework of must sources, cannot be annulled on appeal just for the reason of
selectivity with respect to may sources.
This is, yet again, the necessary consequence of the absence of the binding nature
of persuasive and subsidiary arguments: where there is no binding authority, there
is no correlating duty on the part of judges to raise such arguments if they do not
wish to. While this obviously does not mean a licence to become irrational or
arbitrary, the overall requirements are much lighter.36
5. Summary: Of Old and New Hats

This chapter suggested that modern positivist theories of judicial interpretation
foresee and allow for the incorporation of extra-systemic arguments, including
comparative inspiration, into national law. A lot will naturally depend on the
36 Where these requirements may lie is critically addressed in ch 13, section 2.2 and 3.
individual judicial mindset, or individual judicial ideology. However, today’s
mainstream judicial ideologies in Europe are quite permissive in this respect.
They allow for such type of inspiration, chiefly in cases where strictly legal sources
of national origin are either lacking, contradictory, or in fact no longer appropriate
(dysfunctional or obsolete).
The use of comparative arguments in judicial decision-making is often portrayed
as evidence of a shifting allegiance of national judges which will necessarily burst
open the outdated legal positivism. When contrasting the comparatively construed
positivist framework for judicial use of comparative inspiration outlined in this
chapter with the practice of the five case studies carried out in the second part of
this book, it is difficult to identify what precisely ought to be the current practice
which is destroying the ‘positivistic old’. There is no empirical evidence that the
current non-mandatory use of foreign law in courts steps outside of the framework
outlined in this chapter, certainly not with respect to the established and mature
legal systems in Europe.37
The picture painted in this chapter is certainly nothing new in terms of theories
of legal interpretation and judicial decision-making. It is, in a way, an old hat,
sometimes even an ancient one. But that was precisely the aim of this chapter: to
demonstrate that the current use of comparative arguments by courts has solid
foundation in mainstream positivist theories which are decades old. Those suggest-
ing that this old hat must be replaced with a new one ought to explain what
precisely is wrong with the old hat, at least as long as hat tailoring and production
are supposed to relate to the hat’s current function, and not to (largely irrational)
fashion.
Finally, this chapter only claimed that comparative arguments are legitimate even
in positivist, national-centred theories of judicial interpretation. It suggested that
non-mandatory foreign authority is possible, not that it is a must for national judges.
In other words, all that has been done was to open the doors for the judicial use of
foreign inspiration. It is not being suggested that judges must use foreign inspir-
ation. To justify normatively why judges ought to refer to foreign law for inspir-
ation is by its nature a somewhat different project than establishing that the form in
which they currently do so is compatible with extant theoretical frameworks. It also
requires a different focus. The focus taken here is functional and pragmatic,
oriented towards the internal function of a legal order. It is the recognized internal
need of a legal system which pushes the legal system towards the non-mandatory
considerations of others, copying from them for its own internal benefit. If,
however, the system is able to satisfy the same need for gaps closing and renewal
from different sources (sociological, economic, historical, religious, etc), then a
positivist outlook cannot oblige judges to look abroad and use comparative argu-
ments. In other words, all this chapter did was to open the door to extra-legal
inspiration; it does not claim that it must be comparative law which enters through
that door.
37 Why the argumentative weight of comparative arguments might be sometimes overstated in
systems in transition is further explained in ch 14, section 2.3.

Summary: Of Old and New Hats 219
An alternative to the system-internal and pragmatic justification for getting

inspired from what others do and what they have done before is an idealist,
transcendental appeal to commonality and universality. Judges ought to look
abroad for inspiration not because there is no need to reinvent the wheel and
every reasonable person will be more than happy to copy something which already
functions elsewhere, but because judges are part of one world community. This in
turn generates not only a need for unity and convergence on the world scale, but
also certain bottom-up demand for consistency.38 A common problem of such
theories, appealing and powerful as they are jurisprudentially, is their considerable
detachment from pragmatic and outcome-oriented judicial thinking and decision-
making. On the other hand, the advantage is that the internal-pragmatic and
universal-idealist justifications are not mutually exclusive: both point in the same
direction and can be employed at the same time, satisfying perhaps different
audiences.
38 Recently J Waldron, ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts (Yale
University Press 2012) 109ff.

12
On Authority, Citation, and Silence
All of the legal systems discussed in the second part of this book receive foreign
inspiration. There is, however, a difference, first, in the channel through which
comparative inspiration reaches the courts and, secondly, in the way in which such
inspiration is displayed in a judicial decision, if it is displayed at all. Provided that
the foreign inspiration enters into the national legal domain through the judicial
gate, ie that judges directly engage with non-mandatory foreign sources, the degree
of express attribution of such authority varies considerably: from almost a citation
zeal on the one side to complete silence on the other.
But why, if it is read and studied by the court, is the comparative inspiration not
openly quoted? Why is it not expressly attributed by the court? This chapter offers
some, mostly pragmatic, explanations of the reasons for such silence, especially
within the context of Continental legal traditions.
1. The Authority and its Display in a Judicial Decision

This part of the chapter introduces three general points, which then frame further
discussion in this and also the following chapter: first, what type of authority is
required for justifying a modern judicial decision? Secondly, the interplay between
arguments of discovery and arguments of representation is discussed. Thirdly, the
considerable differences in styles of representation between the various European
systems studied are restated, in particular as far as legal citations in judicial decisions
are concerned.
1.1. The Types of Authority: The Rational and the Religious

Judges are obliged to give reasons for their decisions in writing. In modern legal
systems, this statement appears axiomatic. A reasoned and written judicial decision
is nonetheless a relatively recent invention. Until the late-16th century,1 the
majority of courts did not give any reasons for their decisions. It was just the
sentence (the operative part of the decision) which was announced. Reasons
1 And even before in antique legal systems: for instance, in the Roman tradition, judgments were
given inscrutably, without reasons—see P Birks, ‘Adjudication and Interpretation in the Common
Law: A Century of Change’ in B Markesinis (ed), The Clifford Chance Lectures: Volume I (OUP 1996)
137.
The Authority and its Display in a Judicial Decision 221
(motives) remained secret.2 Between the 16th and the 18th century, the practice in
most countries on the European Continent changed; reasons were given, but only
orally when announcing the sentence. Finally, roughly at the end of 18th century,
reasons started to be stated in full and committed to writing.3
This development was due to many factors. The most significant of them may be
the change in the legal and administrative authority. The pre-modern legal as well
as administrative authority was based on personal status and belief.4 The legitimacy
to decide was derived from inherited personal status and/or transcendent sources.5
A judicial decision was a legitimate decision because it was adopted by the right
person, who represented the will of God or that of the sovereign.6
In contrast, the 18th and 19th century brought about a different vision of
authority and its legitimacy. It was based on impersonal, rational, and logical
process and reasoning. It was no longer belief but reason which started providing
legitimacy and justification for administrative and judicial decision-making. The
type of authority thus shifted from a religious to a rational one. In an extreme form,
the individual qualities of the decision-maker became entirely suppressed; all that
mattered was proper, rational, and logical method and reasoning. Provided
proper methods of reasoning are followed, one will always arrive at right and just
conclusions.7
This change in administrative and legal authority profoundly alters the require-
ments for a judicial decision. A correct decision is based on reason and the almost
scientific nature of legal justification. The personal qualities of the decision-making
individual are, especially in the enlightened Continental legal tradition, suppressed.
Cognition is a matter of rational, objective methodology, detached from subjective
virtues or social background of the decision-maker.8 The emerging picture is one
2 For instance, in the practice of the Parlement de Paris in the 14th century, reasons for a decision
had to be kept secret. They were seen as a part of the judicial deliberation process, which was to be kept
confidential—see JP Dawson, The Oracles of the Law (The University of Michigan Law School 1968)
286–7. Generally see: J Krynen, L´État de justice France, XIIIe–XXe siècle: L’idéologie de la magistrature
ancienne (Gallimard 2009) 79ff.
3 See generally: P Godding, ‘Jurisprudence et motivation des sentence, du moyen âge à la fin du 18e
siècle’ in C Perelman and P Foriers (eds), La motivation des décisions de justice (Bruylant 1978);
T Sauvel, ‘Histoire du jugement motivé’ (1955) 61 Revue du droit public 5.
4 P Becker and R Von Krosigk, ‘New Perspectives on the History of Bureaucratic and Scientific
Subjects’ in P Becker and R Von Krosigk (eds), Figures of Authority (Peter Lang 2008) 16.
5 For the models of pre-modern legal interpretation, see generally: B Frydman, Le sens des lois:
histoire de línterprétation et de la raison juridique (3rd edn, Bryulant 2011).

6 EV Heyen, for instance, reconstrued on the basis of Lutheran funeral sermons from the late-17th
century a set of virtues an administrator ought to have in order to be a good official and pass equitable
decisions. The most important one was godliness (Gottesfurcht), from which other virtues were derived:
fairness, graciousness, persistence, diligence, cleverness, and fidelity. The central importance of
godliness was underlined by the fact that the official realized God’s will. EV Heyen, ‘Metaphern für
“Ampts-Person” und “Ampts-Tugend” in lutherischen Regentenpredigten des späten 17. Jahrhun-
derts’ in Becker and Von Krosigk (n 4).
7 See, eg: R Descartes, Discours de la méthode (reprint, Flammarion 2000) 124–5.
8 This ideological shift was interlinked with an institutional mutation: the introduction of a
centralized review. The first institutional changes of this sort were, however, to be found, somewhat
surprisingly perhaps, within the apparatus of the medieval Roman Catholic Church—see generally:
MR Damaška, The Faces of Justice and State Authority (Yale University Press 1986) 29ff.
222 On Authority, Citation, and Silence
that Max Weber labelled as formalistic, impersonal rationality,9 which provides the
authority of modern decision-makers and legitimacy for their decisions. A correct
judicial decision is one which is issued in the course of a detailed and formalized
procedure, following the prescribed methodology, thus excluding the subjective
and the arbitrary. The reasons for the decision are stated in writing and can be
reviewed.
1.2. The Discovery and its Representation

The requirement of external appearance of rationality in the decision-making
process and the final decision do not, however, necessarily mean also full internal
rationality. There is a well-known distinction between two processes within judicial
decision-making: the process of discovery and the process of representation.10
These are two interlinked yet independent processes. In the process of discovery,
judges are looking for a solution. In the process of representation, they are seeking
to convince others that the solution they found is correct and acceptable. In terms
of processes, the discovery corresponds with judicial deliberations, whereas the
representation with the process of drafting a decision and/or announcing it.
The two processes differ with respect to the pool of the acceptable authority and
motives for reaching a certain decision. In the process of discovery, judges take into
account all the possible arguments. For the process of representation, not all of
these arguments originally tabled will be used, but just selected ones, which are
deemed acceptable by the given legal system.
In case of supreme jurisdictions, the two-phase distinction between the discovery
and representation may be further nuanced. Supreme jurisdictions normally decide
in chambers of various sizes. Their deliberative processes tend to be longer and
involve more people than just the trial judge sitting alone. It could thus be
suggested that there is a third, intermediate step between the (internal) discovery
and the (external) representation: the stage of collective discovery or internal
representation, however one may call it. At this stage, judges seek to convince
their colleagues, or their legal secretaries, or whatever other relevant actors there
may be within the court. It is the stage of internal discourse. For this purpose, the
set of the arguments might be smaller than that in the case of pure internal
discovery (some genuine considerations may not be revealed even to one’s col-
leagues), but yet still be considerably larger than in the case of external representa-
tion.
Discovery and representation are naturally not sealed off one from the
other. Finding a solution is, consciously or not, shaped by the methods of later
representation of the acceptable argument. Equally, the original solution often
9 M Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (5th edn, Mohr
Siebeck 1980) 496ff and 551ff.

10 See generally eg: C Engel, ‘The Psychological Case for Obliging Judges to Write Reasons’ in
C Engel and F Strack (eds), The Impact of Court Procedure on the Psychology of Judicial Decision Making
(Nomos 2007) 73–109 or J Wróblewski, ‘Motivation de la decision judiciaire’ in Perelman and Foriers
(n 3) 113ff.
The Authority and its Display in a Judicial Decision 223
adopted intuitively might be revisited if later found problematic at the stage of its
representation. Thus, in spite of the incessant discussions between formalists and
realists11 about the role of formal method in judicial decision-making,12 the reality
is likely to be somewhere in the middle: a number of judicial decisions are intuitive,
‘first read’ decisions. However, some of them may be later corrected if found
incompatible with acceptable methods of argument, which need to be set out in
the process of representation.13 Thus, the acceptable forms of representation
certainly shape judicial mind and argument in at least two ways: first, the structured
method of representation may weed out and/or refine intuitively reached ‘first read’
decisions. Second, by repetitive ex post checking, the rules of representation
eventually frame the judicial intuition itself. Over years, judges learn to think in
certain patterns, which are in fact structured along the lines of acceptable forms of
representation.
The relevance of the interplay between discovery and representation for the use
of comparative arguments by courts is twofold. First, the interplay helps to
conceptualize various scenarios in which judges get inspired from abroad but do
not quote such inspiration. Second, representation has a certain regressive effect on
discovery. The thinking patterns which it helps to create in judicial minds over time
may also concern sources: if judges are, by virtue of the national rules of representa-
tion, never allowed to openly cite foreign inspiration, will they be, over time, less
likely to keep looking for it?
1.3. The Styles of the Representation

The relationship between the arguments of discovery and arguments of representa-
tion can be visualized as two variously positioned sets. Most frequently, the set
containing the arguments of representation will be an inclusion within the set of
arguments of discovery. Some arguments used for discovery are better not to be
disclosed. However, various types of intersections are also conceivable, depending
on whether within a given legal system there are arguments of representation which
are expected always to be used and which, however, had not been genuinely used in
the process of discovery.
As was already seen in the previous chapters dealing with the case studies of the
various systems, there is quite a difference in relation to the size of the two sets and
11 In the European debate see for instance the realist critique by J Esser, ‘Motivation und
Begründung richterlicher Entscheidungen’ in Perelman and Foriers (n 3) 137–59 or generally

J Esser, Vorverständnis und Methodenwahl in der Rechtsfindung (Athenäum 1970) in particular 121ff,
arguing that the positivist method of legal interpretation is just a façade behind which judges hide but
by which they are not in fact restrained.
12 Critically with respect to whether there in fact have ever been two genuinely opposed positions in
the US context see BZ Tamanaha, ‘Balanced Realism on Judging’ (2009–2010) 44 Valparaiso ULR
1243.
13 See eg the ‘intuitive-override’ model of judging put forward in C Guthrie, JJ Rachlinski, and AJ
Wistrich, ‘Blinking on the Bench: How Judges Decide Cases’ (2007–2008) 93 Cornell LR 1. See also
W van Gerven, ‘Politics, Ethics & the Law, Legal Practice & Scholarship’ LSE Law Working Paper 19/
2008, 4.
their possible intersections. On the one hand, in the French legal system, the set
containing arguments of representation is a small one, only allowing for references
to national statutes. In other systems, this set is larger. In the case of the English
courts, the two sets can be said to almost overlap, with only few arguments of
discovery being precluded from serving as arguments of representation.
Whereas the process of discovery may be largely the same in most modern legal
systems,14 the rules regarding representation differ considerably. Every legal trad-
ition will contain some explicit and/or conventional rules relating to the proper
representation of a judicial decision. The explicit rules are statutory provisions15 or
rules established by the case law of higher courts as to what elements a standard
judicial decision must contain. Conventional rules are those imparted to the
judicial neophytes by their senior colleagues. These conventions would sometimes
be accounted for in the works of the senior members of the profession or the legal
scholarship.16
There is a solid amount of writing depicting the various judicial styles and
comparing them.17 On a sociological and historical plane, the debate tends to be
coupled with the study of professional notables and questions like to whom judges
are addressing their decisions.18 There is no need to enter this debate at this stage;
the various judicial styles have been described in the preceding case studies in the
second part of this book. Only one aspect should be reiterated at this stage: the
historically conditioned varying degree of openness to other than binding sources
and arguments. This phenomenon has already been associated with the notions of
dogmatically closed and dogmatically open systems.19 This openness should,
however, be further nuanced with respect to two elements, which tend to be
interlinked: discursive openness and source-display openness.
In a culture of discursive openness, a decision describes the choices faced by the
judge. The pros and the cons of a solution and the range of choice will be discussed
14 N MacCormick, ‘The Motivation of Judgments in the Common Law’ in Perelman and Foriers
(n 3) 170.
15 In German law, see, eg: } 313 of the Code of Civil Procedure (Zivilprozessordnung in der
Fassung der Bekanntmachung vom 5. Dezember 2005, BGBl. I S. 3202; 2006 I S. 431; 2007
I S. 1781); } 267 of the Code of Criminal Procedure (Strafprozeßordnung in der Fassung der
Bekanntmachung vom 7. April 1987, BGBl. I S. 1074, 1319); } 39 of the Code of Administrative
Procedure (Verwaltungsverfahrensgesetz in der Fassung der Bekanntmachung vom 23. Januar 2003,
BGBl. I S. 102). Even more detailed provisions as far as the justification of judgments is concerned can
be found for instance in Czech law—see } 157 of the Code of Civil Procedure (Act no 99/1963 Coll.)
or }} 120–5 of the Code of Criminal Procedure (Act no 141/1961 Coll.).
16 P Mimin, Le style des jugements (4th edn, Librairies techniques 1978) is a notable example of a
work covering both: statutory requirements, but especially conventional requirements.

17 Apart from the various contributions contained in the already quoted comparative volume
C Perelman and P Foriers (eds), La motivation des décisions de justice (n 3), see, eg: JL Goutal,
‘Characteristics of Judicial Style in France, Britain and the USA’ (1976) 24 AJCL 43; H Kötz, Die
Begründung höchstrichterlicher Urteile (Kluwer 1982); B Markesinis, ‘Judicial Style and Judicial
Reasoning in England and Germany’ (2000) 59 CLJ 294.
18 See, eg: M Rheinstein, ‘Die Rechtshonoratioren und ihr Einfluss auf Charakter und Funktion der
Rechtsordnungen’ (1970) 34 RabelsZ 1. But see: H Bernstein, ‘Rechtsstile und Rechtshonoratioren: Ein
Beitrag zur Methode der Rechtsvergleichung’ (1970) 34 RabelsZ 443.
The Meaning of a Legal Citation 225
and one solution eventually chosen with reasons given why this is the most suitable
one. Conversely, the discursively closed systems stick to the one right answer style
of reasoning: only the one chosen result is announced, the other solutions, which
were there at the stage of deliberation but were eventually discarded, are not
displayed.
Openness in relation to the display of sources relates to the citation of non-
mandatory but still legal sources. These include legal scholarship, various soft-law
instruments, comparative arguments, and all other extra-systemic inspiration. In
dogmatically closed systems, such materials are not displayed. The more open the
system gets, the less strict the rules relating to the display of such persuasive
materials become. Again, this openness scale concerns merely the display of non-
mandatory materials, not their actual use.
2. The Meaning of a Legal Citation

A citation in a decision is conventionally understood as evidence of the use of the
material or the authority to which it refers. The reference to the material in question
serves not only the goals of transparency of the judicial decision-making (all the
materials used should be quoted), but also the aim of justification of the judicial
decision by demonstrating that the judge took into consideration a plethora of
necessary and relevant materials.
The reality may not be as straightforward as that. Projecting the above made
distinction between discovery and representation into the citation of authority in
judicial decisions, some, ideally most of the citations contained in a written decision
might indeed have been of substantive influence in the process of discovery. They
are now therefore faithfully displayed in the reasoning of the court. Other quota-
tions might function, however, just as ex post justification without having genu-
inely contributed to reaching a decision in the particular case. What differs is the
purpose and strategy of the judge in including a quotation in the particular case.
Finding a solution differs from justifying a solution.20
Citations in judicial decisions can be used as a proxy for the existence of influ-
ence. In a study on the use of scholarly writings in judicial decisions, Neil Duxbury
suggested that influence tends to manifest itself differently from one jurisdiction to
the next.21 He compared the various approaches to citing scholarly writings, ie non-
mandatory materials internal to a legal system, in England, France, and the United
States. He claimed that in all three systems, the scholarship and the judiciary clearly
20 See, eg: DJ Walsh, ‘On the Meaning and Pattern of Legal Citation: Evidence from State
Wrongful Discharge Precedent Cases’ (1997) 31 L&S Review 337, 339ff.

21 N Duxbury, Jurists and Judges (Hart 2001) 115. See also: W Twinning and others, ‘The Role of
Academics in the Legal System’ in P Cane and M Tushnet (eds), The Oxford Handbook of Legal Studies
(OUP 2003).
and extensively interrelate. The influence the scholarship has on judicial business is,
however, not always demonstrated by an open citation.22
Similar findings were made with respect to comparative arguments in judicial
decisions in this book. The fact that non-mandatory foreign materials are not being
cited in no way means that they are not being used. Judges may very well read but
not quote. However, before laying out the options for judicial reading and/or
quoting foreign inspiration, two general comparative points are worth highlighting.
First, the above described differentiation in styles of representation amongst the
legal systems studied is naturally reflected in legal citations. A legal citation can be
genuinely used as a proxy for influence only within the openly discursive Anglo-
American tradition. It might have at least some informative value in semi-open
Germanic systems, here represented by Germany and the Czech Republic. In
dogmatically closed systems, such as France or in fact most of the Slovak judicial
world, judicial silence does not provide any tangible evidence in itself. Therefore,
generally speaking, the more dogmatically closed system, the less relevant legal
citation becomes. This indirect proportion is not true only of citing foreign inspir-
ation, but of all legal citation in dogmatically closed systems: in a system in which
judges quote only written laws enacted by the legislature, the gap between the
sources invoked and the sources genuinely used will be considerable also with
respect to all other non-statutory sources in fact used but never cited.
To whom judges may refer is historically determined. Restriction on citing
certain materials or certain authorities is, in a way, an exercise in blunt political
power, by which the modernist intolerant legislature jealously affirmed in the
course of the 19th century its own exclusivity vis-à-vis all other potential pools of
authority coming from other legal systems, such as the ius commune, canonical law,
or against other influences within the legal system itself. The examples of the former
represent the various ‘nationalizing’ provisions of early-19th-century codifications,
prohibiting national judges from looking abroad for inspiration.23 Examples of the
latter include the Italian prohibition of citing the opinions of autori giuridici 24 or
22 The strategy for which a citation was included might also vary considerably, ranging, in the
academic context, from legitimate aims of accuracy, credibility, and the acknowledgement of influence
to power-dressing, flattery, or pacts of mutual citation. See Duxbury (n 21) 9–12.
23 Examples could be provided for instance by some of the civil law codifications of the Swiss
Cantons in the first half of the 19th century, such as Art 3 of the Code civil of Canton Waadt of 1819;
Art 5 of the Code civil of Canton Neuenburg of 1853; or Art 14 of the Allgemeinen bürgerlichen
Gesetzbuches of the Canton Aargau of 1847. Art 3 of the Code civil of Canton Waadt or 1819 for
instance read: ‘Il est défendu aux Juges de citer, comme motif de leur jugement, une loi ou une autorité
étrangère, pour expliquer le présent Code, ou pour y suppléer.’ Quoted from A Meier-Hayoz, Der
Richter als Gesetzgeber (Juris-Verlag 1951) 101 and 106.
24 The prohibition on citing scholarly works in judicial reasoning goes back to a decision by the
King of Savoy and Piedmont issued in 1729. By that time, the legal literature and commentaries
produced by the Italian scholarship were so enormous that they became contradictory and the judges
could find support for anything in scholarly writings. The King reacted by banning any citations of the
works of dottori di legge from judicial decisions and applications submitted to his courts. A similar ban
concerning the Meinungen der Rechtslehrer was contained in } 6 of the Introduction to the Allgemeines
Landrecht für die Preußischen Staaten. See H Kötz, ‘Die Zitierpraxis der Gerichte: Eine vergleichende
Skizze’ (1988) 52 RabelsZ 644, 647 or S Vogenauer, ‘An Empire of Light? Learning and Lawmaking in
To Read and/or to Quote? 227
the French visions of strict legality not allowing for the open display of sources
other than statutes.25
Secondly, even in legal systems where non-mandatory materials are being cited,
the work with them may differ considerably. A good example in this respect is the
citation of judicial decisions and scholarly writings in German and English deci-
sions. A judgment rendered by a German supreme jurisdiction typically cites a long
string of cases of federal courts and scholarly writings.26 Very few of these cases or
none at all, however, are discussed in any detail, in the style and type of discussion a
common lawyer normally understands by citing and dealing with a precedent. An
English judicial decision cites, in comparison with the German one, fewer previous
decisions. Within those fewer citations, however, the engagement with the prece-
dent runs much deeper, including detailed discussion of facts of the previous ruling,
its ratio, its potential following, narrowing, or overruling.27 Statistically, however,
both types of the use of previous judicial decisions count as one quotation.
3. To Read and/or to Quote?

In relation to comparative inspiration, or any non-mandatory materials as such,
judges have four options:
(i) not to read and not to quote;
(ii) not to read and to quote;
(iii) to read and not to quote;
(iv) to read and to quote.
The already made differentiation between the process of discovery and representa-
tion presents the basis for elaboration of these options. Reading foreign law means
any mental engagement with such materials in the process of finding a solution, ie
at the stage of discovery. Quoting foreign law means its external display, ie using it
for the purpose of justifying a decision in the open. The connection between the
two is not a necessary one. An open quotation of a foreign source is necessary only
for justifying a solution, not for its finding.28
In the vast majority of cases, in which a useful comparative argument could be
made, not to read and not to quote is the rule. The broad palette of reasons for not
engaging with anything foreign has already been discussed in the previous parts of
this book.
The situation in which judges quote a foreign authority which they did not read
may be perhaps more frequent than generally believed. There is no shortage of
the History of German Law’ (2005) 64 CLJ 481, 491–92; A Braun, ‘Professors and Judges in Italy: It
Takes Two to Tango’ (2006) 26 OJLS 665, 670ff.
26 See ch 7, section 4.2, with the telling example in n 131.
27 See generally: Markesinis (n 17).
28 T Koopmans, ‘Comparative Law and the Courts’ (1996) 45 ICLQ 545, 550.
examples identified in the individual case studies by the reading of which the reader
entertains serious doubts whether the foreign materials invoked have been indeed
read by the judge. However, as already explained,29 the aim of this book is not to
castigate, but to explain. Therefore, instead of putting individual judges and their
decisions on the spot, three generalized scenarios will be outlined for when judges
are likely to quote but not in fact read.
First, the natural time pressure which constrains the study of the foreign system
judges wish to invoke may lead either to just skimming a few (often accidentally
found) foreign cases or a simple copying of a reference to a foreign decision from a
scholarly article or a book. Especially in the latter case, interpolations occur
frequently: a case included in a scholarly piece for its certain aspect may then be
used by a court in order to suggest something quite different.
Secondly, very vague references to ‘universally shared values’ of Western legal
cultures and other further unreferenced allusions of similar type used in some
judgments often beg the question on what precisely they were based. This is
especially the case if, on a closer inspection, it is evident that there is in fact a
great diversity of solutions within the invoked ‘Western legal culture(s)’. With
tongue-in-cheek, a more critical reader may wonder whether the level of abstraction
used is not intentional in order to free the judge from having to provide a reference
for such sweeping statements.
Thirdly, there are also extreme cases, in which not reading and yet quoting is an
instance of the use of comparative arguments solely for representing a solution, but
which played no role in the discovery. This type of ‘use’ of foreign materials may be
found perhaps more often in systems in transition, in which the foreign authority of
a model to which one wishes to approximate carries considerable persuasive and
political weight. Such authority must be quoted in a significant case, sometimes
even irrespective of what it actually says. This type of use of comparative references
may be also a sign of argumentative and/or authoritative uncertainty. The less trust
judges have in their substantive reasoning or their own (personal or institutional)
authority, the greater need they may feel for additional external authority in order
to buttress the opinion they wish to represent.30
Reading, ie being inspired, while not quoting the sources is also frequent.
Examples in this category might be general as well as individual. Generally within
this category will be all the legal systems in which the express attribution of non-
mandatory sources is precluded but, in the particular case, there still is comparative
or other persuasive inspiration used. France and Slovakia provided examples in this
respect.
There is, furthermore, also the somewhat shapeless set of instances in which
citing the foreign inspiration is not per se excluded by the legal system in question,
but the source of inspiration is nevertheless not cited. Within this category, two
interconnected scenarios frequently emerge.
29 Section 2 of the Introduction to this book, and ch 4, section 1.

30 See further ch 14, section 2.
To Read and/or to Quote? 229
First, comparative arguments may have been for ‘internal use only’. They served
intentionally just for the process of discovery and internal persuasion, but have in
fact never been intended to be displayed in the final decision itself. Heretical as such
a proposition may sound to a common law lawyer, it is quite frequent in a number
of Continental systems. Purely internal is for instance the practice of some supreme
jurisdictions, in which a report for internal discussion or a dossier for deliberation is
compiled. Such an internal dossier may contain comparative materials. These are,
however, never reflected even in the draft decision.31 A variation on the same theme
is when a reporting judge prepares a draft of a collective (plenary or chamber)
decision, which contains comparative arguments. These are, however, later deleted
from the reasoning before the decision is announced and published.32 Finally, some
systems have developed entirely separate discursive spheres, where comparative
arguments, together with other arguments, form by definition only part of internal
deliberations.33
Secondly, it seems that judges are generally less likely to properly attribute
inspiration they have drawn from foreign systems with respect to method or
principle. In contrast, they may be more open, all other things being equal, to
acknowledging inspiration with respect to a particular solution in say substantive or
procedural law. Thus, foreign inspiration with respect to issues like elements of
fault in professional liability or taxation of other incomes of members of parliament
is more likely to be openly attributed than copying the principle of proportionality,
the horizontal indirect effect of fundamental rights, or the practice of interpretative
decisions in constitutional adjudication.34 Although this suggestion is impossible
to quantify and prove, it is likely, essentially for two reasons: pragmatic and
psychological. Pragmatically, a foreign court’s method is difficult to reference. It
will typically be spread over a number of cases and evolve over time, thus presenting
a difficult and somewhat moving target. In contrast, a technical substantive solution
to a specific legal question can often be found in just one or several cases. Psycho-
logically, as is the case with perhaps every professional, a judge might also be more
ready to openly acknowledge getting inspired with respect to the what and
not the how question. Put metaphorically, a craftsman repairing a door is more
31 The practice of the German Bundesverfassungsgericht (see ch 7, section 4.1) represents an instance
of this. A similar practice could, however, be found in other jurisdictions which have established any
form of internal assistance to judges, typically through a research and documentation service. Reports
or memoranda compiled by such departments or specialists are submitted to the judge and/or the
decision-making chamber only. They are, however, not accessible to the general public.
32 The example here is the practice of the Slovak Ústavný súd (see ch 9, section 2.1).
33 The French interplay between the avis or conclusions of an avocat général or rapporteur public and
the deliberation of the respective courts is the example of this (see ch 6, section 4.1).
34 As discussed in ch 8, section 3.1, the Czech Ústavní soud has, for instance, copied the German
doctrines of proportionality and horizontal effect of human rights, without ever expressly acknowledg-
ing them by a citation. A Le Quinio, Recherche sur la circulation des solutions juridiques: le recours au
droit comparé par les juridictions constitutionnelles (Fondation Varenne 2011) 308 mentions another
example, the introduction of interpretative decisions (also called additive decisions) by the French
Conseil constitutionnel as an alternative to annulment following the Italian example. Incidentally, the
same technique has been also taken over by the Czech Ústavní soud. The inspiration came, however,
from Germany.
likely to gratefully acknowledge a colleague’s advice on what is to be done with the
particular type of ironwork on the new door than suggestions on how to hold a
screwdriver properly.
Finally, there is the ideal category: judges openly engaging with comparative
arguments, quoting transparently and in full all the materials that influenced their
decision-making and convincingly justifying the solution they have chosen from
the menu of options laid down before the audience. Why the amount of such
judges-Hercules belonging in this category is, in the practice in the jurisdictions
studied, rather small, will be discussed in the closing part of this chapter.
4. The Advantages of Silence

The common denominator of the argument presented so far in this chapter is
considerable diversity: on the systemic level, it is the diversity of the styles of
representation in the various legal systems examined. On the individual level, it is
the broad palette of reasoning strategies potentially pursued by individual judges:
who is to be convinced by the comparative argument and why? The combination of
these two levels and in particular the degree of individual choice contained within
the latter makes legal citation eventually a rather unreliable proxy for the existence
of comparative influence on a Europe-wide scale, certainly outside the English
common law world.
The remainder of this chapter represents a certain ‘swimming upstream’. The
need for and the virtues of explicit judicial reasoning and the transparent disclosure
of all the materials and motives that influenced a judicial decision could be said to
be universally supported on the normative level today, certainly within the
common law legal scholarship, but also on the Continent. The argument advanced
here is not to challenge this normative position. The aim is just to offer few further
explanations why, in some legal systems or in some cases, comparative arguments
may not be disclosed.
4.1. The Institutional and the Substantive Legitimacy

The disclosure of all arguments which influenced the judicial decision is a practice
which is embraced in the Anglo-American world. It is, however, not fully shared in
the countries on the European Continent studied in this book. As became apparent
from the individual case studies in the second part of this work, the restrictive views
on the propriety of such extra-systemic arguments in a Continental decision are
present not only in the, in this sense very restrictive, French judicial tradition. To
some degree, the same limitations exist also in the German legal tradition and in the
post-communist European countries sharing the Austrian-German heritage.
The reasons for these traditions run very deep. As has already been explained,
most of them are crystallizations of historical power struggles, in which the
sovereign legislator eventually won the upper hand and bound the judges to its
exclusive and nationalized will. In spite of such limitation, the content of what
The Advantages of Silence 231
judges are genuinely using as sources of inspiration for their decisions has always
somewhat differed from the official rules on citation: internal sources differ from
the external ones.
There have been efforts to normatively justify such on-going bifurcation of the
internal and external discourse. The most original in recent years has been offered
by Mitchel Lasser with respect to the French system of civil justice and the
operation of the Cour de cassation.35 Lasser suggested that the apparent lack of
substantive legitimacy of the concise French judicial decisions, which hide more
than they say, may be substituted by the institutional legitimacy of the deciding
highest court. Substantive legitimacy compels acceptance by the force of its
argument. It requires a fairly elaborate justification, which is apt to convince by
mere reading that the solution chosen is the correct one. Institutional legitimacy
relies more on the authority of the issuer of the decision. Lasser argued that the lack
of disclosure on the substantive reason in a judicial decision may be supplemented
by a societal trust in an institution. This provides for a different kind of legitimacy.
It also generates a different sort of discourse: whereas the substantive one is carried
out fully in the open, the institutional one relies on a bifurcated model of internal/
external spheres of discourse.36
Was Lasser right in portraying the French as trusting their institutions and being
content with the style of reasoning offered by their supreme jurisdictions? Or did he
go to an extreme, conjuring an idealized model of a cohesive republican commu-
nity, which is no longer present, certainly not in the France of today?37 It is
certainly true that institutional legitimacy may substitute a substantive one. But
only up to a certain point. After such a point, it is mostly just a convention and a
tradition lingering on, hardly justifiable normatively, but equally hard to change.38
It is a tradition.
A comparative look at the CE legal tradition confirms that there is indeed a
significant interplay between substantive and institutional elements of legitimacy in
judicial decisions. It also suggests that first, what may eventually be labelled insti-
tutional legitimacy was originally nothing else than blunt institutional coercion
which gradually petrified into a convention. Second, the balance between these two
types of legitimacy naturally changes over time.
Historically, the common Austrian origins of CE systems show a considerable
reliance on institutional legitimacy, with, however, a fair degree of substantive
35 M Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy
(OUP Press 2004). Lasser later extended the same argument also to the French administrative justice in
‘The European Pasteurization of French Law’ (2005) 90 Cornell LR 995.
36 Lasser, Judicial Deliberations (n 35) 60 and 179–202.
37 As convincingly argued by eg K Lemmens, ‘But Pasteur Was French: Comments on Mitchel
Lasser’s the European Pasteurization of French Law’ in N Huls, M Adams, and J Bomhoff (eds), The
Legitimacy of Highest Court’s Rulings (TMC Asser 2009) 154–62. For further challenges to Lasser’s
argument, see also J Komárek, ‘Questioning Judicial Deliberations’ (2009) 29 OJLS 805.
38 Since 1970, parts of the French scholarship have been rather critical of the French judicial style.
Further see the literature analyzed and quoted in ch 7, sections 1 and 4, starting with A Touffait and
A Tunc, ‘Pour une motivation plus explicite des décisions de justice notamment de celles de la Cour de
cassation’ (1974) 72 RTDC 487.
elements gradually coming in, especially with the progressive liberalization of the
Austrian monarchy.39 The same style was carried over into the independent states
in CE after the end of the First World War. Looking into the decisions of, for
instance, the Czechoslovak Supreme Court or the Czechoslovak Supreme Adminis-
trative Court in the period between the two world wars, one will note a very similar
style to the period of the late Austrian Empire.40 The style changes abruptly after
the communist takeover in 1948. Any substantive reason was supplanted by
coercive institutional authority: what is being said does not really matter, the
important element is who says it. In such types of authoritarian institutional
‘discourse’,41 there is obviously no need for any persuasive or non-binding authority.
The only sources ever invoked in such a system might be acts of Parliament (now
‘People’s Assembly’) or political or Party documents.42
It was only after the fall of the communist rule that the style and the type of
judicial authority started slowly changing again. The first constitutional courts in
particular, but also personally renewed supreme jurisdiction, brought discursive
elements and substantive reasons back into judicial reasoning. They started also
displaying questions of policy, reasoning out of principles and values, openly
quoting scholarly writings, political and historical works, and other sources.43
The reasons for this change are institutional as well as personal. On the institutional
level, the constitutional courts needed authority outside the system of positive post-
communist laws. Old communist statutes were typically the subject of review, thus
leaving the constitutional judges with little or no statutory authority they could
refer to. On the personal level, moreover, the first generation of constitutional
courts judges in CE came mostly from outside of the career judiciary in these
countries. They thus did not follow (or had never internalized at all) the judicial
style dominant in the communist career judiciary.44
39 Cf the style of the decisions published in the official collections of the Austrian highest courts,
especially at beginning of the 20th century—Sammlung von Civilrechtlichen Enscheidungen des k.k.
obersten Gerichtshofes; Sammlung der geschöpften Erkenntnisse des k.k. österreichischen Reichsgerichtes;
Erkenntnisse des k.k. Verwaltungsgerichtshofes. All these collection are accessible in full online in the
digital archive of the Austrian National Library at <http://www.alex.onb.ac.at>.
40 Cf for instance the decisions published between 1919 and 1938 in the ‘Vážný’ collection (decisions in
civil and commercial matters) or the ‘Bohuslav’ collection (decisions in administrative matters).
41 In the authoritarian model, universal truths are decreed from the centre. In the authoritative one,
the decision is the result of a dialogue that leads to a reasoned and accepted solution. See generally:
S Rodin, ‘Discourse and Authority in European and Post-Communist Legal Culture’ (2005) 1 Croatian
YELP 1.
42 The legal status of Party resolutions and other nominally non-legal political documents might be
open to an intriguing scholarly debate. Taking nonetheless into account the political reality in the
Eastern Bloc after 1948, these materials should be called anything but merely ‘persuasive’ or ‘optional’
authority.
43 For instance, the Czech Ústavní soud in its decisions from the 1990s repeatedly relied on AF von
Hayek (28 March 1996, I. ÚS 198/95; 19 February 2003, Pl. ÚS 12/02) or for instance also Plato (8
March 1995, Pl. ÚS 14/94) and numerous other political and historical works by Czech as well as
foreign authors. In contrast to the recent past as well as then prevailing conventions in Czech ordinary
courts, this amounted to a veritable ‘boom’ in substantive arguments and reasoning. But see critically:
M Matczak, M Bencze, and Z Kühn, ‘Constitutions, EU Law and Judicial Strategies in the Czech
Republic, Hungary and Poland’ (2010) 30 JPP 81.
In sum, the justification of a judicial decision in every legal system represents a

delicate balance between different types of legitimacy. For various historical and
political reasons, a system may, at a certain period of time, rely more on the
institutional than substantive authority for its judicial decisions. Within a system
relying more heavily on the institutional authority, full display and quotation of
authority, especially extra-systemic inspiration such as comparative arguments, is
likely to be limited if not altogether redundant.
4.2. The Transparency Trap

Why should judicial decisions be reasoned and to what extent should they be
reasoned? There are a number of goals traditionally given for having a reasoned
opinion of the court: convincing the parties; avoiding the arbitrary; enabling the
exercise of appellate control; constituting a body of established case law and thus
shaping the legal order; communicating with the broader professional audience;
enhancing the overall legitimacy of the judicial system, and others.45
Within each legal system, different stress is put on different goals, either
intentionally, or, more frequently, because it is yet again historically conditioned.46
The underlying value behind all of these goals is, however, the already outlined
modernist vision of rationality: rational agents engaging with other rational agents
in a legal discourse must be open in disclosing their reasons. The ensuing require-
ment for transparency and discursive openness in judicial justification means that a
reasoned decision should reflect all its reasons.47 Judges should thus be explicit
about what they are doing. They should lay down all the arguments of policy and
weighing of societal interests. They should openly display the interpretative con-
flicts they are solving.
There is, however, a problem inherent in such a broad transparency requirement:
the more a decision discloses, the more vulnerable its reasoning becomes. This may
be called a ‘transparency trap’. In order to be more convincing and/or societal
responsive, judges ought to be more explicit and transparent. However, the greater
number of various reasons, angles, and arguments a decision contains, the more
vulnerable it becomes: on reasons as well as on consensus about them.
The first proposition is largely common sense: assume that the decision of a case
can be reached and justified on one conclusive ground. This reason standing alone
suffices to justify the decision reached. However, in their deliberations, judges also
took into account further reasons, which are auxiliary only. They faithfully display
45 See generally: Engel (n 10) 75–8 or CJ Guillermet, La motivation des décisions de justice
(Harmattan 2006) 17ff.

46 For instance, with respect to German judicial and administrative decisions, it is often asserted
that their aim is scarcely to convince the parties, but rather to convince the appellate institution of the
legality and correctness of the decision adopted. See, eg: N Luhman, Legitimation durch Verfahren (2nd
edn, Luchterland 1975) 215.
47 See generally: J Habermas, Faktizität und Geltung (Suhrkamp 1994) 273–4 or R Alexy, Theorie
der juristischen Argumentation (Suhrkamp 1991) 282. Alexy suggested that there should thus be no
differentiation between internal discovery and external representation and all the arguments of the
former ought to be displayed in the latter.
them all in their decision. With every additional reason given, however, the
probability that one of them will either not please everyone or may be even
genuinely incorrect naturally increases. This leads to the second issue, the question
of social consensus on values on which the arguments are built. The smaller the
consensus that exists on all of them in the necessarily varied audience, the greater
the likelihood of a challenge being posed to a number of such arguments. In other
words, being explicit about all the reasons requires, on the part of the audience and
also the institution, a considerable degree of societal cohesion and consensus on the
various assumptions, approaches, and basic values.
Consensus and cohesion are, however, rarer and rarer in modern and diversified
societies. A mosaic-like modern society might find it hard to agree even on basic
questions which a century back were not even open to discussion. A possible
judicial reply to such value diversity is twofold: first, it is the learned wisdom of
judicial minimalism.48 This means limiting oneself to just the strongest and
necessary arguments, omitting weaker and auxiliary ones. Second, within the
minimum necessary, arguments are framed in a legalistic way, enabling judges to
hide behind the letter of the law, however obscure or vague it may be, thus avoiding
an open display of subjective choice and policy preferences.
For similar pragmatic reasons, comparative arguments may be in the end often
left out of a judicial decision. Their main role is seen as one of finding a solution
and/or for justifying it internally, providing judges with merely mental comfort that
the solution they opted for is not completely unheard of. However, as comparative
arguments in instances of non-mandatory uses of foreign law will always be just
additional or supporting,49 and judges may often be uncertain about their correct-
ness as well as the universal appeal of the authority chosen for the inspiration
drawn, then why make the decision more vulnerable to challenge by including it?
4.3. Transparency and Other Values

Finally, further arguments may be levied against the full disclosure of all judicial
reasons if one were to consider the value of transparency not to be an intrinsic value
but just an instrumental one, which is transitive to the overall modernist aim of
rationality of a legal system. There might be other values a rational and functional
legal system wishes to safeguard, such as access to and understandability of the law,
including the case law. Access and understandability have two levels, which are
48 In contrast to the debate in the United States, where ‘judicial minimalism’ would be discussed as
(yet) another theory of what the courts and the Supreme Court in particular are/should be doing—cf
eg: C Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Harvard University
Press 1999)—in the ordinary (not necessarily the constitutional) Continental courts, minimalism is the
historically acquired convention. Some of the reasons for this in the Central European context are
outlined further in ch 14, section 2.3. However, in all judicial systems, there is a considerable difference
in this respect between the first instance trial judges and appellate/supreme jurisdictions. Pragmatically
speaking, the appetite for judicial minimalism sharply increases with the amount of cases judges are
obliged to dispose of.
interlinked: individual access and understanding of a judicial decision and the

overall ability of the addressees to navigate and find their way around in case law.
Intriguingly, the requirement of accessibility of a decision for the individual is a
chameleon argument. It depends on the context of the legal system within which it
is being used and the individual in question. It can be used to suggest that brief
judgments should be more explicit in order to be understandable. It can however,
also be used to suggest that a judge should be more concise and not indulge in
extensive discussions on doctrinal points, in useless string citations, or in elaborate
discussion of various ‘what if ’ points which only obfuscate reasoning. A decision
‘saying too much’ and presenting itself as an intricate web of references, cross-
references, considerations, and debates may be as problematic as a decision saying
too little.
The latter point concerning the complexity of judicial reasoning, especially in
some common law jurisdictions, may also be employed at a systemic level, ie with
respect to the functioning of the legal system as such. Lengthy and complex judicial
opinions, containing endless string citations for almost every single proposition,
dissenting in three parts and concurring in other four,50 are, from the point of view
of accessibility of the law, a luxury affordable only in systems where supreme
judicial opinions are counted in tens every year, not thousands or even ten
thousands.51
It is true that the link between comparative arguments being displayed in a
judicial decision and the complexity of a decision is rather remote. A passing
reference to a foreign inspiration which was used will hardly excessively burden
an already lengthy decision. The considerations of access and understandability of
judicial decisions are, however, not aimed at comparative arguments only: they
concern all auxiliary arguments, discussions of a range of additional sources, and the
overall increase in complexity of judicial decisions. Seen from this perspective,
comparative judicial excursions are neither necessary nor conclusive, certainly not
in terms of national positivistic theories. When reducing the complexity of a
judicial decision, they are amongst the first types of arguments to be parted from.
Is judicial conciseness to the detriment to full transparency with respect to sources
a bad thing? The impression one obtains when reading various calls in scholarly
writings concerning the need for more comparative and/or other considerations to be
50 One may only wonder at which stage the blessing of the individual judicial opinion becomes a
burden. See, by the way of illustration, the judgment of the US Supreme Court in the case Williams v
Taylor, 529 U.S. 362 (2000), the heading of which reads: ‘Stevens, J., announced the judgment of the
Court and delivered the opinion of the Court with respect to Parts I, III, and IV, in which O’Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts II and V, in
which Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., delivered the opinion of the Court with
respect to Part II (except as to the footnote), in which Rehnquist, C. J., and Kennedy and Thomas, JJ.,
joined, and in which Scalia, J. joined, except as to the footnote, and an opinion concurring in part and
concurring in the judgment, in which Kennedy, J., joined. Rehnquist, C. J., filed an opinion
concurring in part and dissenting in part, in which Scalia and Thomas, JJ., joined.’
51 And perhaps not even in those: cf, with respect to England, eg: A Samuels, ‘Those Multiple Long
Judgments’ (2005) 24 CJQ 279. But see also R Munday, ‘Reasoning without Dissent: Dissenting
without Reason’ (2004) 168 JPN 968.
included in judicial decisions is that the individual has ceased to play any role any
longer. That is perhaps an inevitable element of judicial decision-making at the
supreme level. However, what type of guidance encapsulated in supreme judicial
decisions does a smooth operation of a legal system need? What sort of information
do other actors need? What is the shape and size of a useful judicial product in this
respect? An elaborate Baroque structure, with complex ground plan, colourful stucco,
rich decorations, transcendentally smiling plump angels in every room, but because
of the costly decorations left with an unfinished roof? Or a plain and perhaps even
dull Romanesque house, which fails to excite, but thanks to its solid foundations and
strong walls can certainly withhold a storm?
The solution to the tension between transparency and conciseness is obviously
not a bipolar cut of the type of either/or. It is an evolving compromise. Perhaps the
best way of capturing where the compromise could lie might be by a metaphor:52 a
good decision of a supreme jurisdiction is like a good recipe. When writing the
recipe, cooks may, if they wish, demonstrate their knowledge. They may discuss the
caloric value of the ingredients; their chemical composition; and the means of
rightly choosing them. The cooks may also stress the advantages of bio-ingredients;
dwell on their proper storage; and their conservation and many other things. All
these points may be supported by a number of references to previous recipes and
other cookbooks. The recipe can also be compared with at least five other recipes,
written by other cooks, domestic or foreign, pointing out the advantages or
drawbacks of the other recipes, arguing that in the meals prepared according to
them, the level of vitamins is too high or the amount of polysaccharides is too low.
The cooks may also mention their previous experience from other establishments of
hautes cuisines abroad. Nonetheless, all this does not make a good recipe. What
makes a good recipe is being able to get the instructions as to how to bake a
cheesecake under one page and to be precise as to whether to use wheat flour,
graham flour, or smooth flour and how many eggs are needed.
52 I am much obliged to Dr Michal Mazanec, the vice president of the Czech Nejvyšší správní soud,
for this wonderful metaphor (in personal email correspondence 15 February 2010).
13
Comparative Reasoning by Courts:
Some Classical Points Revisited
The previous chapters of this book have pictured the judicial use of comparative
arguments as a pragmatic, internally driven process in which, for the purpose of
closing gaps or carrying out societal change, the national systems allow for, and in
various forms incorporate, extra-systemic arguments. Whether or not the inspir-
ation drawn will be eventually displayed in the written judicial decision depends on
a number of variables within the legal system. Of equal importance is the purpose
for which judges seek foreign materials in the particular case in the first place:
whether to find a solution, or to justify a solution, or for both of these purposes.
In the context of these findings, this chapter revisits four of the objections
commonly raised against the judicial use of comparative inspiration: legitimacy,
methodology, purpose, and predictability. It deals, first, with the question of
legitimacy for judicial ‘travels abroad’. Secondly, the traditional challenges formu-
lated in relation to the alleged lack of methodology for judicial comparisons, their
selectivity and utilitarian character, are critically discussed. It is suggested, thirdly,
that there is nothing wrong with the methodology, but rather with the wrongly
presumed purposes of comparative inspiration by judges, which are then translated
into incorrect yardsticks. Finally, the seemingly unpredictable patterns of compara-
tive arguments when employed by courts are discussed. Can there be a theory of
something one cannot in fact exactly foresee?
1. The Legitimacy
Courts lack constitutional legitimacy to engage with anything foreign, be it on the
institutional or on the substantial level. As far as the institutional set-up is con-
cerned, to entertain any foreign relations has traditionally been the privilege of the
executive, controlled by the legislature. Since the second half of the 18th and the
beginning of the 19th century, the judiciary has been the bound and nationalized
power. It has accordingly no mandate to enter into any foreign exchange. On the
substantive level, the judiciary ought to be bound by the will of the national
legislature, as evidenced in the laws enacted. This follows not just from the
principle of the separation of powers, but somewhere behind looms also the overall
democratic principle. If the societal and political unit is still the nation state, and if
238 Some Classical Points Revisited
all the power within that state comes from the people, then the same must apply to
the substantive frame for the judicial function and in particular for judicial review.
Such traditional account of the judicial power has, however, considerably
changed over the last century.1 In particular after the Second World War, but in
substantive (not institutional) terms already before, the role of courts and judges in
Europe has started shifting. This development may be traced back to a certain
double liberation of the courts, especially of the supreme and the constitutional
ones.
On the institutional level, courts have become actors in foreign relations. The
executive monopoly in entertaining institutionalized foreign exchange is no longer
the rule.2 Courts are now constitutionally entitled to directly engage with the
outside world. This entitlement includes both direct as well as indirect foreign
exchange. Comparative inspiration is one of the instances of indirect exchange;
instances of direct exchange range from international cooperation in judicial
matters,3 through direct incorporation of international judicial opinions into
domestic judicial decision-making,4 to institutional membership of courts in
foreign governmental as well as non-governmental organizations.5 Judicial foreign
relations move onto a completely new level once the judiciary within a state
becomes a genuinely organized structure and power, commonly with the establish-
ment of a judicial council or national council of judiciary. Unlike individual judges
or individual courts, such institutions then typically have not just the ambition, but
also the resources of entertaining foreign judicial exchange.6
1 Generally see eg: R Badinter and S Breyer (eds), Judges in Contemporary Democracy (NYU Press
2004) or, in a more literary style, F Ost, Dire le droit, faire justice (Bruylant 2007) 33ff.
2 Not only with respect to courts, but also with respect to other powers and other institutions
within a state, including the legislature (eg: various parliament exchange schemes or permanent
international bodies, such as the Parliamentary Assembly of the Council of Europe and others) or
other independent agencies (central banks, securities commissions, and others). See generally:
C Möllers, ‘Netzwerk als Kategorie des Organisationsrechts: Zur juristischen Beschreibung dezentraler
Steuerung’ in J Oebbecke (ed), Nicht-normative Steuerung in dezentralen Systemen (Franz Steiner
2005).
3 Judicial cooperation (mutual assistance, mutual recognition of judgments, enforcement of foreign
decisions, etc) is becoming more and more direct, with no longer any intermediary function of the
diplomatic service (serving documents exclusively through the respective ministries). Direct horizontal
cooperation in judicial matters (civil, criminal, as well as administrative) has experienced a veritable
boom within the EU over the last two decades. See generally eg: S Peers, EU Justice and Home Affairs
Law (3rd edn, OUP 2011).
4 The two most important examples being the preliminary rulings procedure in EU law (Art 267
TFEU) or the duty to implement domestically a decision of the ECtHR, which in the systems of most
signatory parties means the reopening of a final national decision following a judgment of the
ECtHR. See generally E Lambert Abdelgawad, The Execution of Judgments of the European Court of
Human Rights (2nd edn, Council of Europe Publishing 2008) or the individual country studies in
G Martinico and O Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws
(Europa Law 2010).
5 Examples given in ch 3, section 3.3. Some of these associations have a very intriguing legal status.
For instance the Association of the Councils of State and Supreme Administrative Jurisdictions of the
European Union is a civil association incorporated under Belgian (national) civil law with its seat in
Brussels. It is therefore neither governmental nor in fact international.
6 The indirect (via European institutions) ‘exportation’ of judicial councils from the Romanic and
Latin countries to Central and Eastern Europe provides a good example. A successful exporter does not
The Legitimacy 239
On the substantive level, the judicial interpretation of law is no longer dominated by

the will of the national (historical) legislator. The pools of acceptable authority have
enlarged and what the national legislator meant or said is, at its best, of informative
value. Moreover, when implementing EU legislation or other international legal
instruments, the will of the national legislator has become reduced to a general
presumption that the legislator intended to comply with assumed international obliga-
tions. Often, the legislative choice made in the individual case will in fact be negated.7
With such dramatic changes in the constitutional set-up, be it at the institutional
or substantive level, a non-mandatory reference to a foreign inspiration is really not
anything that would stir anyone’s attention. There might be considerable debate
with respect to some of the individual instances of incoming mandatory European
or international ‘foreign’, but the use of optional comparative arguments will hardly
be disputed. The overall context matters: a potential dispute as to whether for
instance the UK Supreme Court should have cited German but not French cases as
inspiration when, for instance, further developing the English law of medical
negligence is likely to be a peaceful children’s matinee reserved to few specialized
legal scholars when contrasted with heated debates on the extent of parliamentary
sovereignty vis-à-vis the primacy of EU law or the obligation to implement
unpopular decisions of the Strasbourg court.8
At the same time, however, it is clear that the institutional changes outlined
above can be traced back to a mandate given to the courts by the national legislator
or even constitution-maker. Such a mandate typically takes the form of legislative
consent to a new international treaty or to the accession to an international
organization, each of them requiring some form of international judicial cooper-
ation. With respect to the use of non-mandatory foreign inspiration in the adjudi-
cation, an implied mandate could be found in the already discussed obligation
imposed upon the judge to decide while having no clear domestic norm, and, at the
same time, being structurally pushed towards the international. However, the
judicial mandate here is still internal to the legal system in question. The judges
themselves appear to have no traceable desire to demonstrate their affiliation with a
broader, global community, or pursue any internationalist agenda.
Empirically, this is confirmed by the fact that the vast majority of any judicial
engagement with anything foreign falls in the mandatory category, ie in cases
imposed by the legislature. As already discussed,9 even within the mandatory
necessarily have a good product, but is well-organized and can sell it. Germanic or Nordic countries,
which might also have a model worth considering, fail to ‘export’ because their judiciaries are units
without a head which could engage in exportation. See generally: M Bobek, ‘The Administration of
Courts in the Czech Republic—in Search of a Constitutional Balance’ (2010) 16 EPL 251.
7 In detail see ch 11, section 2.2.
8 For the former, see Case C-213/89, Factortame Ltd [1990] ECR I-2433 and the ensuing UK
debates as to what is left of the constitutional principle of parliamentary sovereignty. For an example of
the latter, see eg: judgment of the Grand Chamber of the ECtHR of 6 October 2005 in Hirst v United
Kingdom (No 2), app no 74025/01, [2005] ECHR 681, where the ECtHR held that a blanket ban on
British prisoners exercising the right to vote is contrary to the Convention, and the (on-going) heated
debates that followed.
category, judges devise elaborate tools so as not to have to deal with anything
foreign; they disregard points of EU law unless really forced to deal with them; they
avoid the case law of the ECtHR; they devise interpretative mechanisms for choice
of law cases so as to come safely back into realm of national law; etc. In the very few
cases when the judges engage with the foreign outside the must box, the incentive
felt and the justification given are national. Thus, in spite of being constantly
pushed by the choices of the national legislator and by the voices of part of the
scholarship towards the international, the displayed judicial choice is to stay at
home.
In sum, judges in Europe today have a clear constitutional mandate to engage
with the outside world in a number of ways. This constitutional mandate is
supported by the political openness towards the European/international, supple-
mented by an overall agreement in legal scholarship on the utility and necessity of
exchange. Within such a context in Europe today, judicial legitimacy for compara-
tive exchange is not seriously disputed.
Finally, basing the judicial legitimacy for engaging with the outside world solely
on considerations internal to the national legal system could be suggested to be
somewhat too little in terms of a solid jurisprudential theory. Engaging with the
foreign on such a large scale must call for a broader, transnational, or cosmopolitan
vision of judicial function, which then ought to be translated into a new theory.
Such suggestions may indeed become true one day, once the actual practice changes
so as to in fact require such a new theory. Today, scholarly calls of a similar nature
are simply putting the cart before the horse (and then disapprovingly castigating the
horse for not pushing, without explaining why pulling is no longer good enough).
2. The Methodology
2.1. The Challenges: Of Cherries and Misunderstandings

There is no shortage of methodological objections to the use of comparative
arguments by courts, be it in relation to individual judgments or at the more
general methodological level. Two types of objections are very frequent, almost
universal. First, it is typically suggested that the comparative analysis of the court
was selective, just ‘cherry-picking’ the examples or the systems which supported the
conclusion the court wished to reach and disregarding all the others. Second, even
within those examples that the court randomly or even arbitrarily selected, the
analysis carried out was wrong: the court failed to identify proper materials; it did
not understand the context of the legal situation in the country invoked; it
misrepresented the law of the invoked country altogether for any number of
other reasons. On the whole, the overall style of comparative reasoning by courts
is said to be subjectivist, arbitrary, and instrumental.10
10 See, for one example amongst many, eg: JB Auby, ‘Introduction’ in F Melleray (ed), L’argument
de droit comparé en droit administratif français (Bruylant 2007) 5–7. Interestingly, exactly the same
The Methodology 241
The methodological objections levied against the judicial use of comparative

arguments may be put into a broader context of similar and additional reservations
voiced in the scholarly literature with respect to the problematic or lacking
methodology of comparative law as a field of study. The methodology of compara-
tive law is also said to be subjectivist, arbitrary, non-scientific, and/or flawed.11
Alternatively, the subject lacks any methodology altogether. Mathias Reimann
noted in this respect that comparative law has no agreed methodological canon.
It is dominated by a laisser-faire mentality, which reminds one of a Nike commer-
cial—‘Just do it!’.12 The common denominator of these challenges tends to be
similar to the courts-specific ones: generally unscientific nature of the research and
the lack of objective methodology.13
Finally, a similar type of objection is also voiced when scholars from other social
sciences look at the comparative method in law. Ran Hirschl, for instance, chal-
lenged the inadequate methodology of legal comparisons (in general comparative
law as well as in the way it is used by courts) from the point of view of general social
science theory.14 He claimed that comparative law scholarship is generally lacking
in purpose and largely ignorant of basic methodological principles of controlled
comparison, research design, and case selection.15
The method of controlled comparison in social science may certainly be more
elaborate than in comparative law. Leaving aside for one moment the question of
what use social science methods could possibly be for a comparative legal argument
if run by a court, even in purely theoretical terms one cannot escape the impression
that the methodological picture of comparative method in the other socials sciences
reservations can be made with respect to the (mis)use of comparative arguments by the legislator. For
instance, J Carbonnier, Essais sur les lois (Répertoire du notariat Defrénois 1979) 200–1 was quite harsh
in stating that the ‘comparison’ carried out by the French legislator is nothing but vulgarized
comparison, a tool of political propaganda based on mystification, fragmented, and misinterpreted
statistical data.
11 Amongst the many critical works, see, eg: G Frankenberg, ‘Critical Comparisons: Re-thinking
Comparative Law’ (1985) 26 Harvard ILJ 411; HE Chodosch, ‘Comparing Comparisons: In Search of
Methodology’ (1998–1999) 84 Iowa LR 1025; O Pfersmann, ‘Le droit comparé comme interprétation
et comme théorie du droit’ (2001) 53 RIDC 275; M Reimann, ‘The Progress and Failure of
Comparative Law in the Second Half of the Twentieth Century’ (2002) 50 AJCL 671; or most
recently, eg: S Glanert, ‘Method?’ in PG Monateri (ed), Methods of Comparative Law (Edward Elgar
2012). Works seeking to reaffirm the existence of an objective comparative methodology are the
exception, certainly in recent years. From the older projects, cf eg: LJ Constantinesco, Rechts-
vergleichung: Band II–Die rechtsvergleichende Methode (Carl Heymanns 1972).
12 Reimann (n 11) 696. But see, eg: K Lemmens, ‘Comparative law as an act of modesty: a
pragmatic and realist approach to comparative law scholarship’ in M Adams and J Bomhoff (eds),
Practice and Theory in Comparative Law (CUP 2012).
13 It is interesting to note the similarity in the way the lack of ‘objectivity’ of comparative
methodology is challenged in some of the newer, critical works with older critique on the same subject
voiced some time ago by authors from the socialist bloc before 1989—see, eg: V Knapp, ‘Quelques
problèmes méthodologiques dans la science du droit comparé’ in K Zweigert and HJ Puttfarken (eds),
Rechtsvergleichung (Wissenschaftliche Buchgesellschaft 1978).
14 R Hirschl, ‘On the Blurred Methodological Matrix of Comparative Constitutional Law’ in
S Choudhry (ed), The Migration of Constitutional Ideas (CUP 2006). See also: R Hirschl, ‘The
Question of Case Selection in Comparative Constitutional Law’ (2005) 53 AJCL 125.
15 Hirschl, ‘On the Blurred Methodological Matrix’ (n 14) 40–7.
Hirschl painted is somewhat too rosy.16 Even so, however, his conclusion runs
along similar lines to the methodological challenges from within the comparative
legal community: the field of comparative (constitutional) law ‘continues to lack
coherent methodological and epistemological foundations’.17
2.2. Blurred Methodology or Blurred Yardsticks?

The overall picture emerging from the previous section as far as methodology for
(not just) judicial use of comparative reasoning is quite gloomy: courts cannot do it
properly and comparative lawyers themselves are a lot of method-free legal impres-
sionists.
With respect to judicial uses of comparative inspiration, disagreement on the
appropriate methodology is understandable once one considers that beneath lies an
even greater disagreement, namely the lack of clarity on what the genuine aims and
purposes of the use of comparative reasoning by courts are. If there is no clarity on
the purpose and aims, the views on the methods in reaching those aims will
naturally diverge as well.18
Various normative visions may be offered as to what courts ought to be doing in
terms of comparative reasoning. The problem common to most of them is that they
do not take into account the specific needs and purposes for which a court might
look for a non-mandatory inspiration.19 Instead, they tend to mechanically project
the aims of (scholarly) scientific research and corresponding precision required
therein into the judicial use of comparative arguments. However, the judges proceed,
in their reading of comparative materials and their potential later display in a
judgment, with a completely different set of aims. Put bluntly, judges need (in fact
quite shallow) inspiration or argumentative support, not deep-level contextualized
16 Opening several reference works on (comparative) methodology in social sciences generally, one
obtains rather the opposite impression, namely that comparative methodology is far from being clear or
settled there as well. See, eg: E yen (ed), Comparative Methodology: Theory and Practice in Inter-
national Social Research (SAGE 1990) 8ff; NJ Smelser, Comparative Methods in the Social Sciences
(Prentice-Hall 1976) 151ff; I Vallier (ed), Comparative Methods in Sociology (University of California
Press 1971) 3ff; M Grawitz, Méthodes des sciences sociales (9th edn, Dalloz 1993) 364ff. See also:
J Baker, ‘Reflections on “doing” legal history’ in A Musson and C Stebbings (eds), Making Legal
History (CUP 2012). On the other hand, it is also fair to admit that if one decides to write a book about
comparative methodology, then one can hardly be expected to start that work by stating that ‘all is
clear’.
17 Hirschl ‘On the Blurred Methodological Matrix’ (n 14) 63.
18 The question is what is to be defined first, what serves as the axiom: whether the purpose of the
comparison or its method. A realist might suggest that first is the purpose and then the method. If one
does not know where and why one is going, one can hardly tell how to get there. In this respect, see, eg:
JH Merryman, ‘Comparative Law and Scientific Explanation’ in JH Merryman, The Loneliness of the
Comparative Lawyer (Kluwer 1999) or M Adams and J Griffiths, ‘Against “Comparative Method”:
Explaining Similarities and Differences’ in M Adams and J Bomhoff (eds), Practice and Theory in
Comparative Law (CUP 2012). An idealist believing in the existence of rational objectivity independ-
ent of purpose will suggest that the method should be first. Otherwise, a methodological agreement
could never be reached and the method would always be defined in a utilitarian way in accordance with
the purpose, which in turn could be always different. See Reimann (n 11) 695–9.
19 Mostly when seeking inspiration in gap-filling and further developing or updating the law—see
ch 11, section 2.
The Methodology 243
scientific ‘truth’. Without a critical self-reflection on the academic side, these two
worlds inevitably collide. The result is disappointment on both sides: the scholars
are disappointed with the quality of judicial comparative ‘performance’ and the
judges are embarrassed by the critique they consider unwarranted since they
actually tried to do something extra.
Comparative lawyers, especially those publicly pleading for a greater judicial use
of comparative law, find themselves in an awkward position. First, they argue that
judges are doing too little comparative law, that they are too nationalistic and
parochial and that they should open up their minds. Once the judges indeed try to
do so, starting to refer to non-mandatory foreign inspiration, they then often get
criticized, suggesting that they did it completely wrong, that they were not objective
and arbitrary. At the same time, however, very little theoretical (not to speak of
realist) guidance for the future is offered by the critical scholars. As most judges are
not masochistic, they find it difficult to gain much encouragement in such scholarly
writings to continue not being parochial. As a consequence, even the outward-
looking and comparison-inclined judges, who might in general be happy to get
inspired from abroad, may prefer not to quote any foreign inspiration.
Seen in a broader context, the collision between scholarly expectations and
judicial practice is a clash between two sets of visions of (foreign) authority. The
scholarly expected standard is one of (full) scientific rationality and objectivity. The
selection of the foreign materials; the discussion of the reasons for the particular
selection; the reconstruction of the content of foreign law and its interpretation; the
comparative analysis itself; the way in which the foreign or comparatively created
model will be incorporated into the national law and all the other points relevant
for a scholarly comparative study are expected to be addressed and reasoned.
Conversely, the judicial standard offered is a blunt appeal to a foreign authority
with underdeveloped or completely lacking elements of any methodology of
comparison. In terms of the distinction, introduced in the previous chapter,20
what is being offered instead of the expected modernist rational argument based on
substantive reason is a pre-modern argument based largely on religious belief in the
qualities of a foreign system.
These two notions of authority are difficult to reconcile within one judgment. If
the expected standard for a judicial reason is a conclusive, rational syllogism, then a
sudden leap of faith into the realm of religious beliefs in the wisdom and virtues of a
foreign system of law is a difficult one to make. This is, however, precisely the trap
into which comparative arguments fall within a judicial decision. On the one hand,
no (mortal) judge can satisfy the dream of rational objectivity in the area of a, by its
nature limitless, comparative argument. On the other hand, the audience expecting
such rational standards in a judicial decision is not ready, unless it belongs to the
camp of believers, who have faith either in the decision-making body or in the
foreign authority which is being invoked, to accept such reasoning based largely on
beliefs. Once neither of these types of faith is present, any reference to foreign

material in a judgment can always be challenged on a number of grounds: from
selectivity through misreading to complete inappropriateness of the inspiration
chosen. In the hundreds of judicial decisions studied for the purpose of this book in
detail and using, in one way or another, comparative arguments for arriving at their
conclusions, not a single one of them would be immune to similar kind of
challenge. Each and every one of them could be attacked, if someone wished to
do so, as being superficial, utilitarian, selective, and/or misreading the foreign
models invoked.
This clash of understanding of authority lies at the heart of the theoretical unease
with comparative arguments in judicial decisions. Restated differently, a compara-
tive appeal to an external authority is a hybrid not fitting into any neat jurispru-
dential boxes. It is not a binding argument, it is optional only. However, if optional
or persuasive authority is defined as a content-based, not a source-based argument,21
then comparative arguments, based primarily precisely on beliefs into the wisdom
of their source (country of origin), are a jurisprudential travesty. A comparative
argument in a judicial decision is still just a persuasive or optional argument. It
represents, however, an odd conglomerate of source-based and content-based
considerations.
To give an example: imagine say Slovak judges facing a wrongful life case. It is a
novel case. There are neither any specific statutory rules on the matter (apart from
the general civil liability provisions in the Civil Code), nor precedents within the
domestic system. At the same time, the same issue has already been addressed in a
number of other legal systems,22 thus offering a broad palette of potential compara-
tive inspiration. If comparative inspiration were to be a truly persuasive, content-
based argument only, then the Slovak judges ought to analyze all the foreign
materials they have access to. They should evaluate the functionality of the
solutions offered elsewhere, ideally discern an overall trend emerging, and then
assess whether such a solution might fit into the Slovak legal environment.
However, what is likely to happen in reality is source-based selectivity at the
moment of choosing a foreign inspiration as well as at the time of its display. Thus,
Slovak judges are likely to read just the Czech, Hungarian, German, perhaps Polish
and other European cases, if available. They are furthermore likely to quote just a
selection within a selection, omitting for instance any express reference to Hun-
gary.23 All these, initial as well as on-going considerations, are source-based ones.
They precede any content analysis. To put the argument to a hypothetical extreme:
a Russian case dealing with the same issue is unlikely to be quoted, or even read,
irrespective of the potentially excellent and persuasive content it might contain.
In sum, there is a twofold clash of visions which accounts for a number of
misunderstandings pertaining to the judicial use of comparative arguments: the
21 Discussed in ch 11, section 4.1 together with the challenge to these notions formulated in F
Schauer, ‘Authority and Authorities’ (2008) 94 Virginia LR 1931.

22 I Giesen, ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’ (2012) 8
Utrecht LR 35.
The Purpose 245
scholarly projection of wrongful standards in evaluating judicial use of comparative

arguments and the mongrel nature of comparative authority in judicial decisions.
Several types of reaction are possible when faced with these problems. First, an
author may reassert, consciously or not, the requirements of (strict) rational
objectivity for the entirety of judicial decisions and claim that if the courts are
not able to run a comparative argument properly (ie ‘objectively’ and ‘rationally’
according to scholarly standards) they should not do so at all. Secondly, the
opposite may happen: in a flash of legal realism coupled with a preference for the
international, ‘transnational’, ‘global’, and the like, one may suggest that there
always was and that there always will be a great degree of judicial law-making or
discretion beyond any control. It is the inevitable evil of the judicial function. If
judges within this area look to foreign or international materials, this should not
cause that much harm, as the domestic system is in any case better off if the judges
have at least some inspiration than if they were to be left all by themselves with no
guidance at all. Thirdly, some moderate compromise between the two may be
attempted, agreeing, on the one hand, that judges may look for foreign inspiration
but, at the same time, that they should be cautious, self-restrained, critical, and
aware of the scholarly methodological requirements.
The next part of this chapter attempts a different type of intellectual exercise. It
does not require the judges to do anything. Instead, building on the current judicial
practice examined in the second part of this book and on the already developed
arguments in this chapter, it first suggests a realist purpose for judicial use of
comparative inspirations. On its basis, it formulates two minimalist considerations
judges ought to take into account when getting inspired from abroad.
3. The Purpose
In previous chapters of this book, an empirical and later a normative view of

why judges refer to foreign, non-mandatory sources were offered. Foreign non-
mandatory sources will typically be consulted in complex or novel cases, where the
domestic authority is conflicting, lacking or in the need of a societal update. It is in
such cases, when behaving as de facto legislators, that judges seek foreign inspir-
ation and/or argumentative support. This functional purpose of judicial use of
comparative inspiration attributes three characteristics to the process:
First, the process is normative and future-oriented. It is concerned with finding
inspiration for a workable and, for the domestic framework, acceptable solution,
which could be introduced into the domestic normative environment. It is thus by
its very nature different from a scholarly comparative study, be it in the area of law
or other social sciences, which is concerned chiefly with past experience and its
causal explanations. Past causality with respect to the development of the law in
other systems, as far it can be established at all, may indulge the curiosity of scholars
or even scholarly-minded judges. It is, however, not the key to future-oriented
judicial law-making. The key question for a law-making judge is ‘could an idea like
work here in the future’? It is not ‘did I contextualize my reading of the foreign
model sufficiently deeply within the historical, socio-economic, cultural and all
other characteristics of the law in country X, in order to obtain a full and truthful
account of the legal situation in country X?’.
Secondly, the process is pragmatic, not scientific. It is about obtaining ideas and
finding inspiration, not about the ‘objective’ scientific truth. Creatively interpreting
or even misreading a foreign model is a necessary, and often useful, element of
inspiration. A judge can become inspired usefully and for the future workably even
if completely misreading the foreign model.24 What is needed is an idea presumably
compatible with the domestic legal environment. Whether such a distilled idea is
indeed present in the original legal system is of little relevance, provided that judges
look for functional inspiration, not foreign authority for the purpose of representa-
tion.25
For the same reasons, it is equally of little relevance whether the legal solution
which eventually comes about in the domestic legal system corresponds or not with
the practice in the system which served as the inspiration, provided that the new
solutions works.
Seen from this point of view, the battle of metaphors raging in the scholarly
treatment of the judicial use of comparative inspiration is frequently not entirely
helpful. A notable example is for instance the notion of legal transplants. The
notion is pretty. It brings almost medical excitement into otherwise dull legal
debates. The metaphor is, unfortunately, also misleading if used as a yardstick for
evaluating judicial comparisons. The metaphor was fitting in the original sense
given to it by Alan Watson:26 as a tool for tracing back historical migration of legal
ideas, ie for ex post conceptualizing about who was inspired by whom. Otto Kahn-
Freund introduced the same notion virtually simultaneously,27 with, however,
already different content. His views on legal transplants were contemporary and
sociological. The ensuing debates between the historical/explicative and socio-
logical/prescriptive perceptions of legal transplants and their (im)possibility are
intriguing;28 for judicial uses of comparative inspiration, however, they are also
misleading. Whether or not the recipient system eventually resembles the donor
24 See also BO Bryde, ‘The Constitutional Judge and the International Constitutionalist Dialogue’
in B Markesinis and J Fedtke, Judicial Recourse to Foreign Law (UCL Press 2006) 303. A Watson,
‘Aspects of Reception of Law’ (1996) 44 AJCL 335, 341, and 345 claims that in the past, a fair degree
of law reception has been based on accidental misunderstanding of foreign law and models, which were
creatively interpreted.
25 Judges can certainly not lie about the existence of a solution in country X, if there is in fact none.
That would, however, very rarely be the case, essentially for two reasons. First, wise judges will always
refer to a foreign solution as they understood it, not categorically stating that this is the law in country
X. Secondly, the level of abstraction at which references to foreign law are framed virtually prevents
disapproving the statement as false at the level of generality the reference was made. The typical reproach
might then be that the argument and considerations were not deep enough. That is, however, already
shifting the argument elsewhere.
26 Legal Transplants: An Approach to Comparative Law (2nd edn, The University of Georgia Press
1993).
27 ‘On Uses and Misuses of Comparative Law’ (1974) 37 MLR 1.
28 A recent critical overview offers eg: V Perju, ‘Constitutional Transplants, Borrowing, and
Migration’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional
Law (OUP 2012).
The Purpose 247
one is not relevant for judicial use of comparative inspiration. What is relevant is
whether the solution taken and adapted from the donor system functions in the
recipient. To take the idea to its metaphorical extremes: judicial comparative
inspiration is a success even if what has been originally cut out was liver, but within
the recipient it starts functioning as kidney, as long as it works and makes itself
useful. Conversely, if the replication theory implied in the legal transplants meta-
phor were to be taken as a yardstick, then transplantation ought to be a success as
long as the transplant is a perfect copy, even if the patient died.
Thirdly, the process is highly selective and non-representative. Provided that the
comparative reference is a qualitative one, not a quantitative one,29 ie that judges
are accounting for the inspiration they received and from where, there can be no
question of selectivity. In the realm of optional, subsidiary arguments, the proper
question can only be whether the particular authority selected for a particular
proposition is good enough, whether it persuades the reader, not whether all the
potential sources of inspiration have been consulted.30 While law-making, judges
are making a qualitative and in a way sovereign choice, comparable to that of a
legislator. An essential element of such choice is that is quality, not quantity driven.
In sum, what matters in judicial comparisons is useful inspiration, not the
scientific truth. If the final judicial decision contains a reference to the original
inspiration, displayed within conventional limits for a written judicial decision
provided by the respective legal system, such reference is just an appeal to authority
and/or the tool for providing an illustration for the solution chosen. It is not a
scientific footnote,31 which claims the attributes of a scholarly study, such as
fullness, completeness, and scientific objectivity.
However, the argument advanced here is not that by running a comparative
argument, judges break out completely of the modernist rationality box. Instead, it
is suggested that in the area of illustrative examples of how and why judges decided
in an area of judicial law-making, the yardstick is no longer one of strict rationality,
29 The cases in which judges seek to run a quantitative argument on the basis of comparisons are
rare, certainly in the European context. They tend to be extreme cases. In the vast majority of cases in
which any comparative argument is attempted, judges never suggest that solution X is universally
shared. That is why building a jurisprudential theory around such extreme, odd cases may pose a
problem. Seen from this perspective, the key argument in J Waldron, ‘Partly Laws Common to All
Mankind’: Foreign Law in American Courts (Yale University Press 2012) can hardly be used outside of
the context of one single odd case: Roper v Simmons, 543 U.S. 551 (2005). It provides a good argument
for the scenario in which apparently, with the exception of the USA, no country in the world with
which any decent democratic country would wish to be compared imposes the juvenile death penalty.
How could, however, the quantitative argument of the bottom-up need for across-the-world-consist-
ency work in normal cases, which in fact represent the majority of cases in which comparative
arguments are used, inside or outside human rights cases, where there is no single or universal solution?
Hard cases make bad law. Odd cases generate unrepresentative theories, difficult to use in normal
practice.
31 A Grafton, The Footnote: A Curious History (Harvard University Press 1999) recounts the story of
the birth of the modern footnote from the late-17th century onwards as a part of the movement of the
modern historiography towards more scientific and rational methods. The basis of a historical work
should no longer be a collection of hearsay and folk tales, but a scientific analysis of primary sources,
which were to be fully disclosed and referenced in the footnote apparatus.
but something which could perhaps be labelled as just a defendable reason or
residual rationality. The standard for reasoning in the areas of judicial law-making
is not one of necessity and conclusiveness, but of a decent possibility and persua-
siveness.
Taking into account the outlined purpose of judicial comparisons as well as the
characteristics of the process, there are two minimalist requirements which ought to
be assessed by judges when drawing inspiration from abroad. They essentially
restate the dual nature of a comparative argument, which contains:
(i) argument(s) of function; and
(ii) argument(s) of origin.
Argument of function aims at identifying a solution deemed compatible with the
domestic legal system. It considers the needs of the domestic legal order. On the
basis of these identified needs, it looks for a foreign inspiration which is likely to fit
the needs. Argument of origin is concerned with the authority of the solution. It
provides for the initial selection of systems which will be looked at by judges and/or
for the later persuasion of the relevant audience by making a reference to the system
from which the solution came.
The two arguments are naturally interrelated. Both or at least one of them will be
present in the decision, explicitly or implicitly. In an ideal case, both arguments will
be pondered upon and present in a decision. The more intriguing scenarios are,
however, the split ones. First, there might be a good and very likely a functional
solution drawn from bad authority, ie a system which is not considered to be
endowed with any (positive) authority within the domestic system. In such cases,
advised judges are likely to fall silent on there being comparative inspiration at all:
the solution will be silently copied without its source being acknowledged.
Secondly, by all indicators a dysfunctional solution may be drawn from an excellent
authority. In such cases, the authority invoked takes the centre stage, to the
detriment of function.
Although it is acknowledged that such split situations can arise, comparative
inspiration in judicial decisions is truly beneficial only if both sets of arguments
have been examined and answered in the affirmative. Ideally, there is a reasonable
solution which appears compatible and useful to the problem identified within the
national legal system and it can be supported by acceptable authority. Whether or
not both of these arguments will be eventually reflected in a written judicial
decision is conditioned by the drafting conventions present within each of the
legal systems. The reasoning strategy of the individual judge will also play a crucial
role. However, even with these caveats, the two sets of arguments outlined above
are those which judges ought to consider irrespective of their later display in a
decision. Only then can the use of comparative arguments by courts be said to fulfil
its purpose and, in however marginal way, to have informed judicial decision-
making in the individual case.
The Predictability 249
4. The Predictability
Is the formulation of just two minimalist requirements for the judicial use of
comparative arguments after pages and pages of discussion of various elements
of the same phenomenon not a somewhat meagre theoretical contribution? More-
over, on a broader level, how does such minimalism help predict the patterns of
comparative reasoning by courts in the future? If all depends on a number of other,
largely non-quantifiable factors, how does such a conclusion advance the know-
ledge of this phenomenon?
Similar challenges could no doubt be raised with respect to the particular
argument advanced in this chapter as well as the overall argument of this book.
The result might thus be said to be too minimalist, decisionist, and leaving too
much discretional leeway to judges. It may be seen as abandoning the constructive
and limiting role legal scholarship has always been entrusted to fulfil, at least on the
European Continent: by creating appropriate methodological boxes, it limits the
arbitrary.
However, proceeding inductively, it is very hard to find a broader common
denominator in the current comparative practice of the courts. It is difficult to draw
up a comprehensive narrative for a, by its nature, multi-polar and limitless pool of
inspiration, the characteristics of which change according to the legal system in
question and the particular reasoning strategy chosen by the individual judge
within a particular court in a particular case.
Moreover, if the underlying assumption for advocating comparative arguments
in the judicial decision-making is to bind judges and to limit their discretion, then
promoting comparative reasoning in courts has been from the very beginning
placing a bet on the wrong horse. If, one is ready to recognize, however, the
inevitable proportion of judicial law-making, ready to part from the modernist
dream of rational objectivity, then comparative reasoning may keep serving the goal
it always has been serving: providing inspiration.
This all, however, does not mean that the use of comparative arguments by
courts does not follow any logic or overall patterns at all.32 A number of them have
been outlined in various parts of this book. They are set, however, at a somewhat
different level of abstraction, and formulated cautiously with respect to just few
basic rules, tendencies, and motives, not making broad causal statements.33 Is such
an approach, however, ‘scientific’ enough, if the result is not an all-encompassing
model of judicial use of comparative arguments?
The positivistic tradition in scientific discovery requires a scholarly explanation to
be deterministic, causal, and linear. The modernist scientific dream is one of
predictability and determinacy: a sufficient amount of data, evaluated and generalized
32 See, eg: E Mak, ‘Why Do Dutch and UK Judges Cite Foreign Law?’ (2011) 70 CLJ 420, 448,
who concluded with respect to the use of non-binding foreign legal materials by Dutch and UK judges
that there is no systemic approach, no logic identifiable in the current practice.
33 See also ch 3, section 1.
at a reasonable degree of abstraction, will provide a model, on the basis of which
future behaviour can be predicted. A set of equations based on past observation
thus ought to be able to predict future behaviour. In social sciences, an appropriate
abstract model should be able to provide for the same. Behaviour deviating from
such neat abstract models is then deemed to represent just necessary ‘disturbances’
or, as called in the science, ‘noise’. It is attributable by some external change in
input or just a calculation mistake.
What if, however, it was the chaotic, hardly predictable random behaviour which
was the rule and the neat, deterministic models the exception, or just an imaginary
construct?34 The quantum leap in understanding of behavioural patterns of com-
plex systems modern physics, astronomy, biology, chemistry, but also economics,
psychology, or demography made was to embrace the chaos.35 The Chaos Theory,
contrary to its name perhaps, does not suggest that there are no rules or patterns. It
just no longer claims that the knowledge of the past unfolding of such patterns
guarantees the ability to predict the outcome of each individual case in the future.
The Chaos Theory maintains that the defining characteristics of complex systems
are extreme sensitivity to initial conditions, non-linearity, and the disproportionate
relationship between cause and effect. In other words, small things matter a lot: at
first sight insignificant differences can have an unpredictable and disproportionate
impact. It is not just the proverbial and by now quite well-known butterfly effect.36
The general idea is that complex systems are governed by hardly predictable non-
linear dynamics.
At the same time, however, complex systems can be remarkably stable and at a
certain level of generality predictable.37 The stripes of a zebra, the shape of a
snowflake, or the form of sand dunes in a desert can provide visual demonstrations
in this respect. All three are examples of chaos in nature.38 Everybody knows that a
zebra will have stripes. One also recognizes a snowflake or a sand dune. In spite of
this, however, science is not able, even with all the possible data, information, and
computing power it may have at its disposal, to predict what precise form and size
of the stripes an individual zebra will have, or what will be the exact shape of a
snowflake or a dune.
The recognition of infinite complexity and unpredictability in nature, as well as
in other complex systems, gave rise to new perception of science, a new kind of
order. The order is not causal and linear, but within certain bounds chaotic. The set
34 Generally see eg: EN Lorenz, The Essence of Chaos (UCL Press 1993); I Steward, Does God Play
Dice? The Mathematics of Chaos (Penguin 1989); J Gleick, Chaos: The Amazing Science of the Unpredict-
able (Vintage 1998); LA Smith, Chaos: A Very Short Introduction (OUP 2007).
35 For the description of chaos theories as applied to the particular field, see eg: N Hall (ed), The
New Scientist Guide to Chaos (Penguin 1992).

36 Lorenz (n 34) 14 famously asked whether the flap of a butterfly’s wings in Brazil might set off a
tornado in Texas.
37 Gleick (n 34) 46ff.
38 The determining character of which is non-linear self-similarity, in which the same patterns keep
repeating themselves slightly modified at various levels, visually captured in fractal geometry—see
B Mandelbrot, ‘Fractals—Geometry of Nature’ in Hall (n 35).
The Predictability 251
of few simple rules, extreme sensitivity to initial conditions, and complexity will
generate an infinite set of non-repetitive, unique patterns.
Comparative reasoning in courts is a prime example of a complex social system in
law, which is chaotic in its nature. There are just a few simple rules concerning the
purpose, the appearance, and the strategy in running comparative arguments by
courts. There is extreme variety in and sensibility to initial conditions: institutional
settings, individual predispositions, chance or almost anecdotal accidents with
respect to access or knowledge of foreign law. The relationship between cause
and effect within the process tends to be non-linear and disproportionate: a slight
change in procedural, institutional, or personal factors may have unforeseen and
huge impact on further use of comparative inspiration within the given court or
system. And yet, at the same time, the overall system, ie the use of comparative
arguments by courts over time, is remarkably stable and, in broader terms, repeti-
tive.
As with other chaotic systems, however, the knowledge of the key general rules
does not guarantee ability to predict individual cases. Again: few simple and
repetitive rules, sensitivity to initial conditions, and non-linearity generate an
infinite variety of patterns. At the same time, however, with judicial use of
comparative law as well as with zebras, it is known why they happen and also
how they will eventually look once they happen. One is therefore able to recognize
that the creatures approaching are zebras, irrespective of the fact that each of them
will in fact have different stripes. Similarly, one is able to tell when a court is trying
to make a comparative argument, even if one may not be able to predict precisely
how that particular argument will look. Thus, the best that can be offered is a
capture of the overall bounds within which the unpredictable individual will
happen. But, in realist terms, this is in fact not a bad start at all.
14
The Deviations: Political Over- and
Non-comparisons
The previous chapters of the third part of this book have presented a normative
view of the role comparative arguments play in contemporary judicial decision-
making in Europe. The approach outlined was a pragmatic and function-oriented
one, tailored to modern positivist legal systems: supreme and constitutional courts
use comparative inspiration essentially for gaps-closing and societal updates, when
they act as de facto legislators. While doing so, the courts are in need of extra-
systemic inspiration and/or authority. Furthermore, it has been repeatedly sug-
gested that getting inspired from others has been the rule throughout the ages
whereas closures, refusals to engage, were the exceptions.
If such theoretical framework with respect to modern, positivist legal systems is
to be taken seriously, it must be able to account for the odd cases as well. It must be
able to explain the deviations, which may go in both directions: the over-use of
comparative inspiration, on the one hand, and its under-use or even non-use, on
the other.
The first part of this chapter describes such deviations and their origins. It is
suggested that they occur once political opinions and convictions start interfering
with the legal domain, pushing their political agenda onto the courts. Irrespective of
the normal, natural needs of a system for external inspiration, political, ideological
demands insist on a certain judicial approach and rhetoric vis-à-vis foreign law. In
the second part, a recent instance of over-use is examined: the role comparative
arguments and above all comparative rhetoric played in legal transitions in Central
Europe. In the third and closing part, examples of non-uses caused by political
system closures are given. Apart from several historical examples of a partial or
complete sealing off of a legal system, a further currently extensively debated
instance is briefly examined: the uneasy position the use of foreign law in courts
faces in the USA owing to the contemporary political climate.
1. Politics of Comparisons
Politics matter. With whom to compare and for what purpose has been and always
will be a value choice made in either the political or the legal forum. In most cases,
it is the legal that eventually follows the political. There might be a certain delay
Politics of Comparisons 253
before a change in the political preferences spills over into the legal forum. These
two fora will, however, eventually realign one with the other.1
The theoretical framework presented in the preceding chapters of the third part
of this book has been elaborated on the examples of stable, mature European legal
systems, and their engagement with foreign inspiration. These established systems
are politically open. They are ready to accept extra-systemic arguments coming
from abroad, or rather, from certain types of abroad. Political openness is translated
into legal openness with respect to comparative arguments: comparison is not a
decreed obligation, but a welcomed source of inspiration. Whether the foreign
inspiration will be expressly acknowledged in the judicial decision itself is not
essential. What is important is the political and legal consensus that getting inspired
from abroad is an acceptable way for judges to proceed. Such a moderate, median
approach leaves the frequency and the use of comparative inspiration to the legal
practice itself. Comparative inspiration will be used when it is indeed needed by the
legal practice: when gaps need to be filled or the law updated or further developed.
Metaphorically speaking, the comparative dose is measured out and taken
according to the current natural needs of the patient.
Deviations from such moderate, need-based uses of comparative inspiration
occur when the political process and convictions voiced therein start pushing the
legal domain into other directions, deviating from the natural median. Judges are
being politically pushed either towards using foreign models too much or refraining
from using them at all. Based on the existence and/or strength of such political
pushing, a scale with four points emerges:
(i) over-comparisons;
(ii) (tolerant) openness;
(iii) semi-openness; and
(iv) non-comparisons.
These categories are naturally not sealed one from another. Over time, a system
may move up or down, or find itself in a transition between the categories. The
categories should therefore be seen as ideal points on a continuous line, not as
sealed-off boxes.
Over-comparisons occur when a clear and strong political choice has been voiced
within the system that all state bodies, including the courts, ought to realign
themselves with or approximate to a desired foreign model. As a consequence,
the proportion of cases in which the following of a foreign model is displayed or
rhetorically invoked tends to be unnaturally high. The chosen foreign model simply
must be invoked, even if its genuine argumentative use and its contribution to the
solution of the particular case may be marginal if any at all. In such cases, it is the
1 Sometimes slowly, over years, sometime abruptly and quite violently, overnight. See also ch 3,
section 2.1. The political considerations naturally matter not only for legal comparisons, but for
comparisons in all social sciences. See eg the critical account in M Lallement and J Spurk (eds),
Stratégies de la comparaison internationale (CNRS 2003), in particular 7–18 and 325–28.
254 The Deviations
political weight a reference to a given foreign model carries with it which causes its
rhetorical over-use.
The cases of the Czech Republic and Slovakia, both countries undergoing
massive legal and societal transformation after the fall of communism, are instances
of such over-use of foreign authorities. Even if there is no doubt that a legal system
in transition will objectively have a greater need for new solutions and inspiration,
there is still a considerable degree of mere comparative rhetoric in judicial decisions,
often independent of concrete solutions in a particular case. The reference to the
‘Western models’ is the magical formula, politically expected and promoted within
a post-communist system in transition, even if, realistically speaking, the genuine
connection between the solutions advocated and the ‘Western models’ may be
quite tenuous. How and why the judicial invoking of foreign models operated in
these two countries, as well as in other CE legal systems in transition, is examined in
greater detail in section two of this chapter.
With the tolerant openness being the suggested default position, elaborated and
discussed in the previous chapters of the third part of this book, the other direction
in which a system may be politically pushed are various degrees of closure. Semi-
open systems are those in which the use of comparative arguments becomes
systematically contested, but is not yet prohibited. Semi-openness is quantitatively
as well as qualitatively a different category from occasional disagreement about the
proper use of comparative arguments in specific cases. What is being contested on a
larger scale is if (at all), not only how (in the individual case) comparative
reasoning is to be done.
Finally, a system might seal itself off completely, with the political forces
prohibiting the invoking of any foreign inspiration in courts altogether and non-
comparisons becoming the rule. This may happen either selectively (only some
foreign inspiration is banned, typically originating from specific countries or
systems) or generally (the use of any foreign materials is banned and the system
declares itself to be autarkic). Instances of both, semi-open as well as completely
closed systems, are discussed further on in section three of this chapter.
One last point ought to be mentioned at this stage: with the exception of
completely closed systems, which not only politically deny foreign inspiration
any argumentative weight, but physically seal themselves off as well,2 deviations
in either direction are primarily about the display of the foreign authority in the
judicial decision. It is the citation of the foreign materials and the, implied or
express, authority attributed to it that become artificially promoted or contested.
What matters is the political display, not necessarily also the control over the
genuine inspiration used in judicial decision-making. Therefore, while over-
using, judges quote the politically expected authority even if in fact not reading
2 The situation in CE communist countries in the period immediately after the fall of the Iron
Curtain (post-1948) might provide an example here. Not only were any comparative arguments in
judicial decisions banned for political reasons; no materials from the ‘West’ were accessible, at least not
to the general legal public. In dictatorial systems therefore, the limitation is not only on quoting
anything foreign, but also on reading it.
Over-comparisons 255
it. Conversely, in semi-open systems, while not being expected to cite, judges may
still be permitted to read.3 In both cases, for political purposes, the sources which
may be officially used for justifying a solution become dissociated from the sources
judges might have used in finding a solution.4
2. Over-comparisons
2.1. The Nature of a Legal Transition
Amongst the jurisdictions discussed in the second part of this book, there were two
which could be said to be or recently have been countries in transition: the Czech
Republic and Slovakia. Several characteristics emerged from these case studies with
respect to the use of comparative arguments. They could be said to be particular to
systems in transition.5
First, one can observe an increased frequency of the use of non-mandatory
foreign inspiration, if compared with established jurisdictions within the same
legal tradition, such as Germany or Austria.6 With respect to the amount of
comparative reasoning, some internal differentiation is discernible: the greatest
use of external authority is present within the constitutional courts. The practice
of other supreme jurisdictions tends to be more varied. Some, especially the new or
personally renewed supreme courts, such as the Czech Supreme Administrative
Court, also refer to foreign models more frequently. Others, such as the Czech
Supreme Court or the Slovak Supreme Court, are much more reserved, or even
apparently uninterested in any comparative inspiration altogether.
Secondly, when contrasted with the rich judicial practice, the domestic scholarly
discussion concerning the use of comparative arguments by courts as well as
comparative studies generally are rather modest, lagging behind the quick evolution
of the law and case law. Therefore, the traditional civilian balance in terms of the
legal scholarship and the legislature being the primary gates for legal change shifts in
favour of the judiciary, which is obliged to carry out societal updates and reinter-
pretation of the law on its own. Judges themselves directly reach for foreign models,
without the benefit of previous national scholarly debate.
Thirdly, the legal inspiration in these countries comes predominantly from
Germany, in particular from the very influential case law of the German Bundes-
verfassungsgericht.
3 Cf the position of a conservative member of the US Congress vis-à-vis the use of foreign law by US
courts, which essentially boils down to the proposition: ‘Fine ( . . . ) Read it. Just don’t cite it in your
opinion.’ In ‘A conversation between U.S. Supreme Court Justices’ (2005) 3 I-CON 519, 523.
4 Thus introducing, as in a number of instances in the past, a bifurcated system, where arguments of
discovery do not correspond with arguments of representation. See ch 12, sections 1.2 and 4.1.
5 ‘Transition’ and ‘transformation’ are used as synonyms here, in spite of their semantic differences.
6 The Austrian practice of comparative judicial reasoning appears to be very modest—see, eg:
A Gamper, ‘On the Justiciability and Persuasiveness of Constitutional Comparison in Constitutional

Adjudication’ (2009) 3 ICLJ 150, 155.
256 The Deviations
These three characteristics are not limited only to the Czech Republic and
Slovakia. They are shared by other CE post-communist countries, notably Poland
and Hungary. In both countries, the respective constitutional courts have been
open to foreign inspiration. The Polish Trybunał Konstytucyjny (TC) is a court
whose jurisdiction is limited to the abstract review of constitutionality.7 Because of
its relatively manageable docket,8 the TC enjoys the privilege of being able to
concentrate on a more in-depth study of the issues submitted. This is in turn
reflected in the relatively high volume of comparative inspiration reflected in its
decisions. In the period 2001–2005, the TC openly resorted to comparative
arguments in about 5 per cent of decided cases.9
The practice of referencing to foreign inspiration in the case law of both the
supreme jurisdictions in Poland, namely the Sąd Najwyższy (Supreme Court) and
the Naczelny Sąd Administracyjny (Supreme Administrative Court) is much more
modest, accounting perhaps for just a few cases in a decade.10 Similarly to other
civilian supreme jurisdictions studied in the second part of this book, these few
isolated instances are statistically marginal if contrasted with the thousands of
decisions rendered by each of these jurisdictions every year.11
A strong foreign inspiration is also visible in the case law of the Alkotmánybíróság,
the Hungarian Constitutional Court. A qualitative study of the Court’s case law in the
area of basic rights and human dignity allowed Catherine Dupré to claim that
the Court was a prolific importer of foreign law,12 most frequently from Germany.
Constitutional decisions relating to other issues also confirm a similar phenomenon
in other areas of constitutional adjudication.13
7 See generally: G Brunner and LL Garlicki, Die Verfassungsgerichtsbarkeit in Polen (Nomos 1999)
64ff.
8 Over the period of the last ten years, the TC decided annually on average 120 cases on merits.
Further see the statistic of the judicial activity of the Court, ‘Orzeczenia TK kończące postępowanie na
etapie rozpoznania merytorycznego w latach 1986–2009’ accessible online at <http://www.trybunal.
gov.pl>.
9 In the period in question, the TC decided 603 cases. In 33 of them, it referred to law or case law
of other legal systems, most frequently to Germany. The cases are (quoted chronologically by case
number only, all the cases can be located online <http://www.trybunal.gov.pl>): K 8/98, K 21/99,
K 26/98, P 11/98, Pp 1/99, K 24/00, SK 8/00, K 26/00, K 33/02, K 41/02, SK 6/02, K 7/01, P 11/
02, SK 22/02, SK 24/02, K 12/03, K 4/03, Kp 1/04, P 2/03, P 2/04, P 4/04, SK 44/03, K 32/04, SK
39/05, SK 56/04, P 25/02, SK 44/04, K 18/04, P 1/05, SK 26/02, K 9/04, P 10/04, K 24/04. I am
much obliged to Dr Marcin Wiącek, the former head of the Zespół Orzecznictwa i Studiów
(Department of Case Law and Research) at the Trybunał Konstytucyjny, for this data set (personal
email correspondence 23 February 2010).
10 Interestingly, from the few identified decisions, it appears that it is the administrative courts and
especially the Naczelny Sąd Administracyjny which use comparative arguments in their decisions more
frequently—see eg judgment of the NSA we Wrocławiu of 17 May 2001, I SA/Wr 2887/99; judgment
of the NSA w Warszawie of 8 May 2008, II OSK 237/07; decision of the NSA of 13 July 2009, I FPS
4/09; decision of NSA of 14 December 2009, II FPS 7/09. All decisions are accessible online at
<http://orzeczenia.nsa.gov.pl/cbo/query>.
11 For instance, the NSA decides between 8000 and 10000 cases annually. Further see the statistics
available at <http://www.nsa.gov.pl>.
12 C Dupré, Importing Law in Post-Communist Transitions: The Hungarian Constitutional Court and
the Right to Human Dignity (Hart 2003) 7.

13 Cf the head notes and other introductory information to English translations of selected
decisions of the Hungarian Constitutional Court in L Sólyom and G Brunner, Constitutional Judiciary
As far as the second characteristic is concerned, the amount of scholarly com-

parative discussion naturally varies according to the size of the legal system and the
amount of scholarship it produces. However, even in the otherwise elaborated14
Polish scholarship for instance, questions of comparative reasoning in courts qua
methodology of legal interpretation do not attract much attention.15 On the other
hand, the system has been gradually opening itself to persuasive arguments coming
especially from both of the systems of European law.16
Finally, the otherwise massive German influence in CE has been perhaps little
attenuated in Poland, where a part of the older legal elites may be focused on
French culture and, a substantive part of the youngest elites, on the English and
US. In Hungary, as the former president of the Alkotmánybíróság noted, the
German influence was in fact so ‘overwhelming’, that the Court intentionally
sought to counterbalance it by looking somewhere else as well.17
If one were to assume that the above described phenomena are not just isolated
instances, but more broadly shared characteristics of a legal transition in the CE
legal space, how could these be conceptualized on a theoretical level? In particular,
what role did comparative reasoning play in these systems in transition and why is it
so widely used especially by constitutional courts? Conversely, why was little or no
attention to comparative arguments paid in the traditional supreme courts, the
origin of which predates the revolution?
2.2. Judiciary in a Legal Transition

Any new political regime faces a similar set of questions relating to its institutional
transition.18 Within the judiciary, the question is: what to do with the judges of the
in a New Democracy: The Hungarian Constitutional Court (The University of Michigan Press 1999).
See also: G Halmai, ‘The Transformation of Hungarian Constitutional Law from 1985 to 2005’ in
A Jakab and others (eds), The Transformation of the Hungarian Legal Order 1985–2005 (Kluwer 2007);
A Sajó, ‘The Development of Freedom of Expression after 1989’ in V Lamm (ed), Transformation in
Hungarian Law (1989–2006): Selected Studies (Akadémiai Kiadó 2007).
14 Certainly within the CE region with respect to the size and the scope of the national scholarly
debate. This suggestion passes no judgment on the quality, just on simple numbers. The Polish
population (and correspondingly the legal scholarship generated by it) is four times larger than the
population of the Czech Republic and eight times larger than Slovak one.
15 Cf, eg: L Morawski, Zasady wykładni prawa (TNOiK 2006) 151–2 or M Zeiliński, Wykładnia
prawa: Zasady, reguły, wskazówki (LexisNexis 2006) 311ff.

16 See eg: E Łetowska, ‘Multicentryczność współczesnego systemu prawa i jej konsekwencje’
Państwo i prawo, no 4/2005, 3; D Kiedrowska, ‘Proeuropejska’ wykładnia prawa polskiego w okresie

przedakcesyjnym’ in L Leszczyński (ed), Wykładnia prawa odrębności w wybranych gałęziach prawa
(Wydawnictwo Uniwersytetu Marii Curie-Skłodowskiej 2006); P Tuleja, ‘Podstawowe problemy
związane z interpretacją Konstytucji Rzeczypospolitej Polskiej w orzecznictwie Trybunału Konstytu-
cyjnego’ in Księga XX-lecia orzecznictwa Trybunału Konstytucyjnego (Wydawnictwa Trybunału Kon-
stytucyjnego 2006); E Maniewska, ‘Prowspólnotowa wykładnia prawa polskiego w poakcesyjnym
orzecznictwie Sądu Najwyższego’ Europejski przegląd sądowy, no 1/2005, 49.
17 Sólyom and Brunner (n 13) 5. See also: L Sólyom, ‘The Role of Constitutional Courts in the
Transition to Democracy: With Special Reference to Hungary’ (2003) 18 International Sociology 133,
144; L Sólyom, ‘Anmerkungen zur Rezeption auf dem Gebiet der wirtschaftlichen und sozialen Rechte
aus ungarischer Sicht’ in JA Frowein and T Marauhn (eds), Grundfragen der Verfassungsgerichtsbarkeit
in Mittel- und Osteuropa (Springer 1998).
18 See generally: RG Teitel, Transitional Justice (OUP 2000) 11–26.
258 The Deviations
old system? The problem is not with the politically corrupt few, for instance judges
who presided over heavyweight political trials. These typically leave by themselves
or they are quickly disposed of. The real problem is with the grey masses of servants,
who did not expose themselves in any significant way, but were nonetheless clearly
loyal to the previous system. They were formed under it. They enforced its values.
To replace a substantial quantity of judges,19 as was for instance possible after
German reunification with the importation of judges from the former West
Germany into East Germany,20 is a unique historical opportunity which was not
available in any of the other CE post-communist states. To train and quickly put
into place an entirely new corps of judges is a task that even the communists
themselves failed to achieve after their takeover in 1948.21
All the judiciaries in post-communist CE were thus, basically out of necessity,
built on the principle of personal continuity. The countries entered the phase of
judicial transformation with similar starting positions. Judges educated in the
communist era could be replaced overnight. The entire legal order was composed
of old communist codifications and the only thing which changed overnight was
the apex of the legal system, the constitution. In some countries, even the consti-
tution remained the same and the only things that changed were the political values
underpinning the constitutional system. How to effectuate change within such
settings?
There will obviously be, after some time, new legislation. There will also be, after
much longer period and with much less certainty, judges with a new mindset. This
is, however, a process that takes years or rather, as one sees in the daily practice in
these countries, decades. In order to help to bring about the required legal change
in the adjudication practice more speedily, two aspects became crucial in CE legal
transitions: one methodological and one institutional.
The methodological aspect relates to the question as to how to carry out change in
the interpretation of old communist codifications. The way to change the content
without changing the letter of the law is through change in the interpretative
techniques: textual and other arguments, which refer the interpreter back to the
19 Or, perhaps, to dispose of them in a more drastic way: a senior English judge, when asked in
1990 what the CE countries should do first in their judicial transition, answered: ‘Hang all the
judges!’—in Z Tůma, ‘Soudce nelze novelizovat’ (Judges Cannot be Amended) in I Pospíšil and
M Kokeš (eds), In dubio pro libertate: Pocta Elišce Wagnerové u příležitosti životního jubilea. (In dubio
pro libertate: Liber Amicorum Eliška Wagnerová) (Masarykova univerzita 2009) 247.
20 See, eg: I Markovits, ‘Children of a Lesser God: GDR Lawyers in the Post-Socialist Germany’
(1995–1996) 94 Michigan LR 2270 or E Blankenburg, ‘The Purge of Lawyers after the Breakdown of
East German Communist Regime’ (1995) 20 Law & Social Inquiry 223.
21 For instance, in Czechoslovakia in the early 1950s, the Communist Party established so-called
‘Law Schools for Labourers’ (Právnické školy pracujících). In these special evening schools, opened only
to members of the Communist Party, the Party bred a ‘new type of socialist lawyers’. The course lasted
one or two years and it equated to a university degree in law. The applicants did not even need to have
secondary school education. The project itself, however, was discontinued after four years of its
existence in 1954, as the quality of the ‘graduates’ from these courses was too terrifying even for the
communist planners. See generally: Z Krystufek, ‘Komunistické právo v Československu’ (Communist
Law in Czechoslovakia) in M Bobek and others (eds), Komunistické právo v Československu: Kapitoly z
dějin bezpráví (Communist Law in Czechoslovakia: Chapters from the History of Lawlessness)
(Masarykova univerzita 2009).
will and values of the communist legislator, are supplanted by arguments referring
outside of the existing positivistic framework. The ‘politically correct’ method of
interpretation under a new regime based on value discontinuity with the previous
one can no longer be textualism, but purposive (teleological) reasoning out of the
new telos (the values of the new constitution), accompanied by comparative
arguments aiming at approximation towards Western democracies and/or Euro-
pean standards.
The institutional aspect in all the CE countries concerned the establishment of
specialized constitutional courts, which acted as enforcers and guardians of the new
constitutional settlement and its values. Generally speaking, three generations of
constitutional courts in Europe can be roughly distinguished.22 The first one was
born after the First World War, the second one after the Second World War, and,
finally, the third one came after the fall of communist rule in Central and Eastern
Europe. The crucial competences of the constitutional courts of the first generation
(Austria and Czechoslovakia) were disputes over competences between state au-
thorities and the abstract review of constitutionality. Constitutional courts of the
second and third generation were introduced, with the notable exceptions of France
and Belgium, following a dictatorial experience.23 These courts are typically still
entrusted with hearing cases concerning the competence of state authorities. In
federal states, they may be also asked to adjudicate on disputes between the
federation and the member states or vice-versa. Their primary function was,
however, a different one: a specialized and concentrated model of judicial review,
created in these new democracies, is above all a form of institutional distrust. The
post-Second World War constitutional courts are tools of judicial transition. Their
crucial function is to safeguard and enforce the provisions of the new constitution
vis-à-vis the old, post-communist, or somewhat earlier, post-Nazi government, as
well as judiciary, and prevent any future abuses of fundamental rights.24
This transformation rationale also holds true of post-communist Central Europe.25
Constitutional courts in these countries were put in place as de facto revolutionary
tribunals, safeguarding the new constitutional settlement and, in countries which also
22 M Fromont, La justice constitutionnelle dans le monde (Dalloz 1996) 17–26.

23 See, eg: C Starck and A Weber (eds), Verfassungsgerichtsbarkeit in Westeuropa: Teilband I: Berichte
(Nomos 1986), in particular reports on Germany (121–48), Italy (219–42), and Spain (243–78).
24 H Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (The University of
Chicago Press 2000) 18–19.

25 The transition rationale applies also to Poland and the former Yugoslavia. Although it is of course
true that the constitutional courts in these countries were established before 1989, their establishment
can nonetheless be traced back to the gradual liberalization of the regime, ie germs of transition which
were already present in these countries in the 1980s. See generally: M Verdussen, ‘La justice
constitutionnelle en Europe centrale: essai de synthèse’ in M Verdussen (ed), La justice constitutionnelle
en Europe centrale (Bruylant 1997) 229–30 or A Zoll, ‘Die rechtliche Wirksamkeit der Entscheidungen
des polnischen Verfassungsgerichtshofes’ in BC Funk and others (eds), Der Rechtsstaat vor neuen
Herausforderungen: Festschrift für Ludwig Adamovich zum 70. Geburtstag (Verlag Österreich 2002)
855. But see: W Sadurski, ‘Constitutional Review after Communism’ in W Sadurski (ed), Consti-
tutional Justice, East and West (Kluwer 2002) 175.
260 The Deviations
introduced the possibility of individual constitutional complaint, also directly enfor-
cing the new constitutional values vis-à-vis the old communist judiciary.
Before both of these aspects are discussed in greater detail, it should be pointed
out that the connection between the methodological and the institutional aspect is
not a necessary one. In most CE countries, these two aspects overlapped. That is
why the new constitutional courts established within the region tend to be
automatically associated with the new methods of reasoning and new approaches
to law. The connection is nonetheless not a necessary one: different institutional
actors than new constitutional courts may promote new interpretative techniques
that reach outside the framework of positive communist laws.26 At the same time, if
staffed predominantly with elder communist judges, new constitutional courts may
become the bulwarks of post-communist conservatism.27
2.3. Methodological Aspects: External Inspiration and Authority

Purpose and comparative reasoning have one key characteristic in common: they
both appeal to values outside the system of the current body of positive law. They
serve as tools for bringing new values and new solutions into a system in transition
while, at the same time, preserving at least the façade of an objective legal discourse.
In the post-communist judicial practice, they frequently supplemented each other:
because the telos of the new constitutional system is based on different values from
the previous communist one, comparative inspiration may help to fill these abstract
values (rule of law, democracy, human rights, and others), which themselves often
came from abroad, with a more concrete content.
a) Purposive Reasoning and the Logic of Legal Revolutions

Post-communist lawyers are often accused of being limited formalists, who seek
refuge in the realms of mechanical jurisprudence and senseless sticking to proced-
ures.28 Afraid to decide on substance and to pass any controversial judgments, they
26 For instance, personally renewed supreme courts or other newly established institutions with a
distinct transformation ethos. An example of the former is the Estonian Supreme Court. Estonia did
not establish a new constitutional court after the fall of communism. Instead, it entrusted consti-
tutional review to a specialized chamber of the Supreme Court. An example of the latter is the creation
of the Polish Supreme Administrative Court, which was established in 1980, before the creation of the
Constitutional Tribunal in 1986. See generally: H Izdebski, ‘La jurisprudence de la Haute Cour
administrative polonaise’ (1984) 36 RIDC 471.
27 The Bulgarian Constitutional Court is an unfortunate example belonging to this category. See,
eg: D Smilov, ‘Constitutional Culture and the Theory of Adjudication: Ulysses as a Constitutional
Justice’ in A Febbrajo and W Sadurski (eds), Central and Eastern Europe After Transition (Ashgate
2010).
28 See, eg: Z Kühn, ‘Worlds Apart: Western and Central European Judicial Culture at the Onset of
the European Enlargement’ (2004) 52 AJCL 531 and Z Kühn, ‘The Application of European Law in
the New Member States: Several (Early) Predictions’ (2005) 3 GLJ 565; T Ćapeta, ‘Courts, Legal
Culture and EU Enlargement’ (2005) 1 CYELP 23; or M Matczak, M Bencze, and Z Kühn,
‘Constitutions, EU Law and Judicial Strategies in the Czech Republic, Hungary and Poland’ (2010)
30 JPP 81. But see M Bobek, ‘On the Application of European Law in (Not Only) the Courts of the
New Member States: ‘Don’t Do as I Say’?’ (2007–2008) 10 CYELS 1.
seek to dispose of cases on obscure points of procedure, in the observance of which

they are very meticulous. As far as their approach to legal interpretation is con-
cerned, they are said to be textualists. Literal interpretation of written rules
dominates. Very little attention is paid to other methods of interpretation (logical,
systematic, and historical). As good as no attention is paid to the newer methods,
namely comparative and purposive reasoning.
Legal textualism29 in Central European countries has deep historical roots. To
some extent, it has always formed part of the CE judicial self-portrait. CE judi-
ciaries are built on a myth: the myth that judging and deciding cases is a clear-cut
analytical exercise of mechanical matching of facts with the applicable law. It is
almost ‘legal arithmetic’. Judges do not pass any ethical or moral judgements. They
just find (never create) the applicable (ie already extant) law strictly within the laws
passed by the legislature. The judicial authority is then derived from such technical
legal knowledge, acquired and tested in a mandarin-like entrance examination, and
further fostered in a similar style of promotion and advancement. Such expertise-
derived authority restrains and protects judges at the same time. Judges are not
called to judge the others because they would be better in moral or ethical terms.
Judges are called to judge the others because they know the law, meaning that they
have the technical knowledge of the codes, the acts of the Parliament, the practice
of the higher courts, and the respective procedures to be followed. Text of the
binding law is what decides. Judges are presented as invisible, grey mousses, devoid
of any personal values, choices, and personality.
Apart from this historical judicial self-portrait, there is yet another reason for
judicial textualism in Central Europe: the use of textualism under communist rule
as a type of judicial defence against politicization of the (entire) judicial activity and
self-preservation of judges. To understand this development, one has to look into
the logic of revolutions, which has been the same in fascist Italy,30 Nazi Ger-
many,31 as well as Stalinist Central Europe.32 All of these examples have one thing
in common: they were based on value discontinuity with the previous regime and
continuity in the body of positive law. A revolution typically happens overnight. Very
soon thereafter, a new constitution or a sort of basic law is passed, thus changing the
value foundation of the legal regime. However, the entire system of positive law, for
some time, lags behind. No new regime is able to replace within days or weeks the
29 As the essential point of the critique was strict and mechanical adherence of CE judges to the text
of the law, the term ‘textualism’ is preferred to the term ‘formalism’, notwithstanding that the critiques
of CE judges speak more often of ‘formalism’. ‘Formalism’ is, however, a very vague notion which
generates more problems than it offers conceptual explanations—cf critically M Stone, ‘Formalism’ in
J Coleman and S Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (OUP
2002).
30 G Calabresi, ‘Two Functions of Formalism’ (2000) 67 U Chicago LR 479.
31 B Rüthers, Die unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im Nationalsozialis-
mus (Mohr Siebeck 1968).

32 Z Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transform-
ation? (Martinus Nijhoff 2011).

262 The Deviations
entire system of positive laws including codifications like the criminal, civil,
commercial, and other codes.33 This takes years.
It is precisely in this period immediately after the revolution but before the
system adopts its own laws, meaning laws that correspond with its values and
visions of society, that adjudicators are asked to ‘remedy’ the deficient old laws via
interpretation. Marxist law required, at least in its early (Stalinist) phase that judges
disregard the remnants of the old bourgeois legal system in the interests of the
victory of the working class and the communist revolution. Judges were supposed
to apply the law in a teleological way, always directing its purpose towards the
victory of the working class and the dialectic approach.34 Open-ended clauses,
typically of a constitutional or even political nature, took precedence over a textual
interpretation of the existing written law. In a way, the ‘faulty’ old laws were, for
some time, replaced by a direct application of principles and slogans.35
This accent on anti-textualism (or, in the period lingo, dialectical materialism)
disappears once the new political system has established itself and replaced the
corpus of positive law and the codes with its own codifications. From that moment
on the requirements of the system vis-à-vis its officials change. They are no longer
required to be anti-textualists and question the correctness and the applicability of
the legal norms. Now they are just asked to (textually) follow, as the new legal order
is already in line with the new political system.
Textualism played an intriguing dual role in the developments described above.
In the anti-textual (Stalinist) period, recourse to a strict textual interpretation of the
existing (old) law became a natural line of defence against the anti-formalistic
teleological style of judicial reasoning officially required by Party policy. In the
early period therefore, textualism helped to defeat the new system: if a judge
textually followed the still liberal pre-communist laws, which would have guaran-
teed basic procedural rights for every accused, it could for instance lead to an
acquittal of an enemy of the new regime. This vision changed, however, in the later
period of communist law, when there were already new codifications. Then
textualism became the way to stay in line and not to expose oneself by making
any personal value judgements. Textualism thus turned from a way of challenging
the new regime into a philosophy of hiding and capitulation.
It is with this ideological and cultural heritage that CE judiciaries enter the era of
transformation after 1989. The 1989 changes are, in a way, nothing less than yet
33 The French Revolution 1789 and the Bolshevik Revolution in 1917 came as close as possible to a
complete legal discontinuity, discarding most of the earlier laws. On a closer inspection, however, also
they were just gradual revolutions with longer or shorter interim periods, in which the previous laws
were still in force. Further see HJ Berman, Law and Revolution (Harvard University Press 1983) 28ff.
34 See generally: O Ulč, Malá doznání okresního soudce (Small Confessions of a District Court
Judge) (68 Publishers 1974) 39–58. Otto Ulč is an émigré Czech lawyer who worked as a judge in a
District Court (court of first instance) in Western Bohemia in 1950s.
35 See, eg: F Boura, ‘K otázce výkladu zákonů’ (On the Question of Interpretation of Laws) (1949)
88 Právník 292, 297 who, shortly after the communist takeover in the former Czechoslovakia, argued
that: ‘the fundamental canon of interpretation is that the interpretation of any legal provision must be
in conformity with the nature and aims of the peoples’ democratic order.’ See also in general: Kühn,
‘Worlds Apart’ (n 28) 539–45.
another legal revolution in this region, with respect to the Czech Republic or
Slovakia already a fourth within the last century. This time around, there is again
formal legal continuity (positive law and legal relationships stand as before), but
(certainly politically proclaimed) value discontinuity with the previous regime. The
same patterns developed again: there is a new constitution, a charter of fundamental
rights, and a new political order which claims to be based on democracy and the
rule of law. However, the entire mass of positive law is composed of decades-old
communist codifications from the early 1950s and 1960s. The newly established
constitutional courts therefore ask all the institutions (in particular judicial and
administrative, but also legislative) to bring the old laws as well as the new ones into
line with the new constitution and its values by the fiat of interpretation.36
Against such settings, if textualism is revived once again, it again becomes a tool
for defying the new system. This is the tension which lies at heart of judicial
conflicts and court battles in some of the CE countries in the 1990s, especially
between the newly established constitutional courts, staffed with liberal lawyers or
dissidents, and the ordinary supreme courts, typically staffed with senior commun-
ist judges. The constitutional courts, guardians of the new constitutional settlement
in the new democracies, asked the older communist judges to do essentially the
same as the Communist Party had asked them to do before in the Stalinist period:
to interpret the old communist laws and codes in the light of new values, disre-
garding their text. Older communist judges are reluctant if not outrightly hostile to
doing so. Some of them might indeed be using textualism as a tool for rejecting the
new system and its values. Others, however, might not be hostile towards the
system at all. Their historical experience advises them, however, to be very careful.
It is the learned wisdom of the CE judiciaries that those who were seduced by the
luring of transcendental values of whatever origin and stepped outside of the textual
box are very likely to be very quickly disposed of, once the nature of the political
transcendental changes again. Textual interpretation thus helps survival in any
regime. It saves judges from making any visible value judgements and passes on
the responsibility for any legal change to the legislator.
To sum up, greater accent on the use of purposive reasoning is a sign of a
transforming legal order. Overnight, the values of a legal system changed without
there immediately being corresponding changes in the entire mass of positive law. If
there is to be any change before the necessary new legislation is passed, the new
constitutional values, which are for the time being outside of the system of positive
law, are to be incorporated directly into the adjudication.
36 Cf the early decision of the constitutional courts in the CE region, proclaiming the duty of all
other bodies in the state, including the ordinary courts, to (re)interpret old communist laws in line with
the new constitutional values. See the decision of the Czech Ústavní soud of 21 December 1993, Pl. ÚS
19/93 (‘on the lawlessness of the Communist regime’), no 14/1994 Coll., or the decision of the
Hungarian Alkotmánybíróság of 15 March 1992, 11/1992 (‘on retroactive criminal legislation’), AB
(ABH 1992, 77), in an English translation in Sólyom and Brunner (n 13) 214–28.
264 The Deviations
b) Comparative Arguments and Appeals to External Authority

The process of any transition is in its nature political. The political process and
convictions generated within it push the law as well as judges towards a certain
model. However, a court, even (or especially) a constitutional court, is not expected
to display its choices in a political way, as perhaps a legislator or constitution-maker
would. A court is expected to put them in legal terms. The format of the expected
legal discourse is one of objective, rational justification.37
With little or no domestic scholarship such court could refer to, one of the few
options a court has in such settings is to go comparative and to use foreign models
from the countries one wishes oneself to approximate to as an external and anterior
‘objective’ authority. The reliance on such authority, which has the aureole of being
a successful liberal model, is thus used, in practical terms, as the temporal replace-
ment for lacking national law and case law, which would be in line with the values
of the new political system.
A Czech freedom of speech case might provide a good illustration of the process
in which the comparative arguments and the reliance on foreign materials (case law
in this particular case) were used in such a manner. The case Vondráčková v Rejžek38
involved a Czech pop singer, Helena Vondráčková, and a music critic, Jan Rejžek.
The latter gave an interview to a widely read daily, Lidové noviny. In this interview,
he uttered very critical remarks about the Czech pop music scene. One of his
observations was that the current pop scene is still packed with the same singers
who have been on stage from the 1970s and 1980s onwards. He asserted that this is
due to the fact that Czech pop music world is still run by the same communist
managers, who have not lost influence after the revolution and still dominate the
scene. He then referred expressly to Mrs Vondráčková as one of the ‘out-going’
singers, whose charm and art has long faded and who is being kept on stage thanks
to her continuous connections to this pop music ‘mafia’.
Mrs Vondráčková brought a civil action against Mr Rejžek for libel. The key
issue became the interpretation of the term ‘mafia’, which was used by Mr Rejžek.
Mrs Vondráčková claimed that by such public statements, she was being associated
with a terrorist and criminal organization, which is obviously untrue and insulting.
All the civil courts hearing the case (Municipal Court in Prague, High Court in
Prague, and the Supreme Court) allowed the action and obliged Mr Rejžek to
publish an apology in the newspaper where the original interview was published.
The case reached the Czech Ústavní soud on a constitutional complaint filed by
Mr Rejžek against the final decision of the Supreme Court. The CÚS quashed the
decisions of the civil courts and, invoking the horizontal effect of fundamental
rights doctrine, stated that civil courts must weigh the fundamental rights which are
in conflict here, namely the freedom of speech on the one hand and the right to
personal integrity (human dignity) on the other.
37 See ch 12, section 1.1 and ch 13, section 2.2.

38 Decision of the CÚS of 15 March 2005, I. ÚS 367/03.
The materials used for reaching the various decisions in this case are of interest.
In holding that the reputation of Mrs Vondráčková was lessened by the statements
of Mr Rejžek, the civil courts relied on the case law of the then Czechoslovak
Supreme Court from the 1980s. The CÚS scorned (especially) the Supreme Court
for doing so. The CÚS stressed that a free society gives different weight to freedom
of speech. It accordingly enjoys a greater protection than from the communist
courts in the 1980s, where a clear preference was given to personality rights. In the
following reasoning, the CÚS referred to German and US case law39 and came to
the conclusion that in such a case as this, it is the freedom of speech that prevails.
A similar rationale for the use of comparative reasoning can be also discerned in
the case law of other supreme jurisdictions. For instance, the Czech Nejvyšší správní
soud considers comparative legal analysis to be one of the interpretative tools that
can help to correct an unacceptable result reached by literal interpretation.40 Literal
and somewhat mechanical interpretation is often favoured by the public author-
ities. When applied to older statutes, often dating back to the communist period,
literal interpretation yields problematic results.41 Here again, foreign law is a
welcome source of inspiration for the period of transition, a help in overcoming
outdated national law or case law. In a way, foreign law functions as a temporal
replacement for inadequate national law, which would be in line with the new value
system and which would be normally used in the process of judicial reasoning.
2.4. Institutional Aspects: From Revolutionary Tribunals

to Regular Supreme Jurisdictions
Roughly twenty years after the last round of institution-building in CE countries
and the establishment of specialized constitutional courts, one can observe a certain
institutional mutation of these jurisdictions. What was originally put in place a sort
of revolutionary tribunal, set up to guard and enforce the reached constitutional
settlement, mutated into a regular supreme court.
This development is due to several factors. First, constitutional courts can
review, directly or indirectly, decisions of ordinary courts. Secondly, they are not
able to define the scope of this review, as none of them was ever able to define the
notion of constitutionality. Thirdly, the overall judicial discourse in these countries
has changed: from legality to constitutionality. Thus, any legal problem can be
reworded as an issue of constitutionality and may be put before the national
39 BVerfGE 90, 241 and BVerfGE 90, 1; New York Times Co. v Sullivan 376 U.S. 254 (1964) and
Gertz v Robert Welch, Inc. 418 U.S. 323 (1974) respectively.

40 See, eg: judgment of 21 August 2003, 5 A 116/2001-46; 11 February 2004, 7 A 72/2001-53; 26
October 2005, 1 Afs 86/2004-54.

41 For instance, judgment of the grand chamber of the NSS of 26 October 2005, 1 Afs 86/2004-54,
concerned the issue of whether the decision of a tax authority discontinuing the proceedings for
remission of tax is reviewable before administrative courts. The literal interpretation of the relevant
passage of the Law on the Administration of Taxes and Duties as well as older case law would exclude
such possibility. The Court pointed out that comparative arguments may help to correct such an
unacceptable interpretation and allowed the action.
266 The Deviations
constitutional court which becomes, for all practical purposes, the supreme juris-
diction in the legal system.
In theory, constitutional courts are supposed to act as the protectors of the
constitution. Their jurisdiction should be limited to the question of constitution-
ality. The proclaimed function of the constitutional courts is to interpret and apply
the constitutional law. To interpret and apply simple law is the task of courts of
general jurisdiction, ie ordinary courts.42 This distinction spills over in the area of
protection of fundamental rights: not every breach of simple law (illegality) is, at the
same time, unconstitutional. The violation must be of constitutional significance,
ie the violation must go beyond the mere illegality.
The division between constitutional and mere law implies that there is a test or a
set of criteria which demarcate the borderline between the world of legality and the
world of constitutionality.43 There is none. Neither the Bundesverfassungsgericht,44
nor its CE offspring45 have ever been able to come up with any plausible test or
criteria for the distinction of these two worlds in the area of constitutional
complaints. What is applied is a subjective ‘I-know-it-when-I-see-it’ test, which,
of course, leads to uncertainty as to when there is an issue of constitutional
significance at hand and where there is none.46
The fact that there is in reality no clear borderline between the realms of
constitutionality as opposed to simple legality together with the fact that the
constitutional courts can review individual judicial decisions of ordinary courts,47
42 The German Bundesverfassungsgericht distinguishes in this respect between the levels of consti-
tutional law (Verfassungsrecht) on the one hand and, perhaps somewhat dismissively denoted, the area
of simple or mere law (einfaches Recht) on the other. The same distinction has been taken over also by
the CE constitutional courts.
43 See, eg: L Heuschling, ‘Justice constitutionnelle et justice ordinaire: Épistémologie d’une
distinction théorique’ in C Grewe and others (eds), La notion de ‘justice constitutionnelle’ (Dalloz 2005).
44 See generally: Bundesministerium der Justiz, Entlastung des Bundesverfassungsgerichts: Bericht der
Kommission (Moser Druck Verlag 1998) 137–8 and the literature cited therein.
45 Cf the various contributions in the collective volume Hranice přezkumu rozhodnutí obecných
soudů ústavním soudem v řízení o ústavní stížnosti (The Limits of the Constitutional Review of the
Ordinary Courts’ Decisions in the Proceedings on Constitutional Complaints) (Linde 2005).
46 Dozens of cases from different jurisdictions could be mentioned here. To take just one example
from the Czech constitutional case law: Mr and Mrs Petrov were Ukrainian asylum seekers in the
Czech Republic. In the judicial proceedings before Czech administrative courts which reviewed the
administrative decision not to grant them asylum, they did not declare ignorance of the Czech
language. They were thus served with judicial documents in the Czech language. They later attacked
their respective negative decisions before the Czech Ústavní soud, claiming that the procedure was
flawed because they did not understand the language. The respective constitutional complaints of both
husband and wife were almost identical, as was the previous administrative as well as judicial procedure.
In case of Mr Petrov (decision of 8 August 2005, II. ÚS 186/05), the ÚS found a violation of the right
to fair trial and annulled the previous decisions. The identical constitutional complaint by his wife, Mrs
Petrov (decision of 20 July 2005, IV. ÚS 189/05) was nonetheless rejected by a different senate of the
CÚS as ‘manifestly inadmissible’, with the argument that the case was not of any constitutional
significance.
47 In the Czech Republic and Slovakia, there is an individual constitutional complaint modelled on
the German example. As from 1 January 2012, the same is the case also in Hungary (where previously
only abstract review on the basis of an actio popularis was possible). In Poland, there is no individual
constitutional complaint. There is, however, the possibility of abstract review of a statute applied in an
individual case, which is deemed unconstitutional. On the other hand, the court of last instance, which
issued a decision on the basis of an unconstitutional statute and which was the initiation for the abstract
have gradually altered the parameters of the CE legal systems. What followed was
also the corresponding change in the overall rhetoric of the systems. Any issue can
be framed in terms of constitutionality and put to the test of constitutional courts.
The previous yardstick of judicial function, which tended to be one of legality, has
thus been taken over by constitutionality.48
This functional shift fits well into the broader picture of the rise of constitution-
alism after the Second World War and the omnipresent human rights discourse. By
means of the requirement of conform interpretation and the radiating effect of
constitutional rights into the entire legal system,49 constitutional courts change the
structure of the judicial system50 and, at the same time, shift the functional rhetoric
of the judiciary. Fundamental rights and constitutionality can be found everywhere,
provided one looks for them.
The gradual mutation of the constitutional courts from the stronghold of insti-
tutional distrust into a regular supreme court is completed once the ordinary courts
accept their role as first instance guardians of constitutionality, embrace the consti-
tutional rhetoric, and do not hesitate to apply the constitution and the case law of
the constitutional court directly. This is perhaps not yet the case in the third
generation of supreme courts in the post-communist CE. This can be said to be
the case, however, in some of the second generation constitutional courts, most
likely in Germany. In such a system, there are instances in which lower courts (first
instance courts or appellate courts) render more constitution-friendly decisions, ie
more protective of individual rights, than eventually the Bundesverfassungsgericht
itself. Here, the constitutionality loses its function as a tool of distrust and becomes
the permanent centre of legal discourse and reasoning, accepted by all players
within the system.51
In CE, this on-going functional shift and institutional transformation is also
accompanied by a personal one. Recently, one may observe a certain gradual
coming together of constitutional justices on the one hand and the ordinary judges
review, will be obliged to reopen its final decision should the statute be found unconstitutional. In this
way, the abstract review is thus still of relevance for the individual dispute. Further see the national
report on Poland in O Luchterlandt (ed), Verfassungsgerichtsbarkeit in Mittel- und Osteuropa: Teilband
I: Berichte (Nomos 2007).
48 One of the justices of a CE constitutional court, who shall remain undisclosed, put it in an
informal debate with the author the following way: if a constitutional system knows three basic
rights—human dignity, equality, and fair process—any legal question can be phrased as an issue of
constitutionality.
49 See, eg: BverfGE 7, 198 (207)—‘Lüth’; BVerfGE 30, 173 (187)—‘Mephisto’; BverfGE 34, 269
(280)—‘Soraya’. See generally: H Dreier and others (eds), Grundgesetz: Kommentar: Band I: Artikel
1–19 (Mohr Siebeck 1999) 66ff; I von Münch and P Kunig (eds), Grundgesetz—Kommentar: Band I:
Präambel bis Art. 19 (CH Beck 2000) 38ff; or R Alexy, Theorie der Grundrechte (Nomos 1985) 473ff.
50 See generally: A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (OUP
2000) 117 and 122 or V Ferreres Comella, Constitutional Courts and Democratic Values (Yale
University Press 2009) 111–21.
51 On the level of required decentralization of constitutional discourse and review, see recently, for
instance, BVerfG, 2 BvL 59/06 of 12 October 2010, accessible at <http://www.bverfg.de>, in

particular [59].
268 The Deviations
on the other. The gap in between the constitutional judges and ordinary judges is
no longer that huge.
The first constitutional courts were typically composed of strong personalities:
émigré or dissident lawyers, legal scholars and thinkers independent of the previous
regime. Excellent as these personalities were, their views and, accordingly, their
decision-making and decisions, were worlds apart from the visions and decisions of
the (communist-bred) judges at the ordinary courts. This personal detachment
further amplified the institutional and value division between the new incoming
constitutional courts and the established supreme courts.
The second or in some countries already third constitutional courts tend to be
personally much weaker institutions. The reason for this is quite simple: the pool of
independent and strong personalities in smaller countries in the period after a
regime change is not limitless. Additionally, the strong justices appointed in
immediately post-revolutionary time were generally older, often even persons
who studied before the fall of the Iron Curtain. The potential in the current
generation, which would have already been born under the communist rule and
never experienced anything else, is more limited. The 2007 renewal of the Slovak
Constitutional Court might provide an example in this respect: most of the current
justices are either career judges or attorneys or prosecutors, who started their legal
career under communist rule in 1970s or 1980s, following the classical path of a
career judge.52
The new constitutional justices are thus generally chosen from within the pre-
revolutionary system of law and its judicial cadres. At the same time, however, they
are bound by the patterns and rhetoric already introduced by their predecessors.
The ensuing result can be a certain retreat from the previous strong value-oriented
reasoning, while, however, keeping the overall function of the new system. This
shift, together with the personal background of the new justices, makes them and
their decisions more acceptable to the majority of the older and middle legal
generations, especially the judges of ordinary courts, as they are deemed to be
‘one of us’.
By this fiat, constitutional adjudication and constitutional reasoning eventually
become more acceptable for the other players within the system. Somewhat sadly
perhaps, but such a constitutional court is no longer an isolated island of ‘positive
deviation’. It gradually becomes a normal institution within the system. In this way,
personal change reinforces the on-going institutional mutation of a constitutional
court into a regular supreme jurisdiction.53
52 The same is true, although to a lesser extent, also of the second Czech Ústavní soud, whose
members were appointed after 2003. Similarly in Hungary, after the departure of L Sólyom and the
first Constitutional Court at the end of the 1990s, the second court presided by J Németh is, as put for
instance by Dupré (n 12) 189, a ‘quite different’ institution.
53 By way of historical comparison, a similar institutional mutation happened two centuries ago
with the French Tribunal de cassation, already discussed above in ch 6, section 4.3. The Tribunal was
originally not seen as a court, but a part of the legislature, protecting the new prerogatives of the
legislature against judicial encroachments. Already in the first half of the 19th century, the Tribunal
first became a ‘Cour’ and after that gradually also a ‘normal’ supreme court.
2.5. Of Law Importation and Temporal Colonies

The argument presented so far sought to place the over-use of comparative
arguments in CE countries in transition into a broader context. It has been
shown what methodological as well as institutional elements in these systems
contributed to the robust use of and even more robust comparative rhetoric with
respect to foreign models. There are further four elements of the process which
emerged in the discussion and which merit a final appraisal here: the role of
constitutional courts; the overall conceptualization of such mass scale law import-
ation; the one-sided nature of such importation, turning, in a way, CE countries
into German legal colonies; and, finally, the intriguing question whether the over-
use of comparative inspiration is indeed a temporal deviation or might, in fact,
remain even after the transition is over.
Constitutional courts and their role in legal transformation in CE have been the
objects of a specific cult in liberal international constitutional scholarship. In the
mainstream narrative produced, the creation of constitutional courts in new
democracies is presented as a blueprint for transformation success: enlightened,
liberal rule of lawyers is guiding the transforming legal system towards a brighter
tomorrow. This may not be, however, always and necessarily the case: it is only
within certain institutional and personal settings described above that constitu-
tional courts in new democracies fulfil the positive role of pro-transformation
tribunals. Only then may they function as deeply undemocratic but for the
transformation necessary agents of change.
Once the institutional and legal context of a transformation has been explained,
it is perhaps no surprise that it has been the constitutional courts in particular that
sought inspiration and above all argumentative support outside the communist
system of positive law. Comparative arguments fitted the political outlook of a
particular institution. Moreover, mimicking processes have always been natural
reactions to uncertainty and a hostile environment.54 All the constitutional courts
in the CE region faced a similar, partly hostile political environment.55 Mimicking
and copying of the successful German constitutional model was a natural response
in order to establish and to reinforce one’s own position. This also explains why in
contrast to the new constitutional courts, the established supreme courts within the
systems were themselves reluctant or even hostile to comparative inspiration.
The degree of mimicking, attributed or not, in constitutional courts in CE
invites the question as to how to conceptualize such continuous and deliberate
copying. In the already mentioned study on the influence the case law on human
dignity had on the Hungarian Constitutional Court, Catherine Dupré suggested that
this practice can no longer be labelled as comparative exchange, legal transplants, or
with any other metaphorical label, but should be named ‘law importation’ instead.
54 Generally eg: Y Mény (ed), Les politiques du mimétisme institutionnel: Le greffe et le rejet
(Harmattan 1993).
55 W Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of
Central and Eastern Europe (Springer 2005) 27–63.

270 The Deviations
She defined law importation by four elements: it is voluntary; it is a deliberate choice
in favour of one specific model; this choice is a part of an overall strategy to develop
the law; and, lastly, it qualitatively differs from a simple use of comparative law as a
source of inspiration for judicial reasoning.56
A metaphor of law importation defined in this way may be a truthful conceptual-
ization in the particular settings of one, personally rather homogenous court, which
is overwhelmingly oriented towards another legal system, and for a study within a
specific area of constitutional law for a relatively short period of time. This vision
gets, however, more complex once the factors studied are no longer so narrow: the
orientation within the judicial body becomes more varied, its members feeling
pulled in different directions; inspiration might be drawn from various systems in
various fields of law. Moreover, the picture becomes even more mosaic-like if one
were to move at the level of the legal system as such, thus having to incorporate a
number of other judicial actors and strategies.57
Even for a study within one institution in process of legal transformation, it is
nonetheless questionable how far a deliberate choice of a legal system and its
gradual importation can be assumed. There is no doubt that the majority of
comparative inspiration in post-communist CE was of German origin, especially
in the area of constitutional law. Such choice corresponds not only with the prestige
and the corresponding appeal of the German post Second World War constitutional
model,58 but has deeper historical roots,59 which include aspects of cultural proxim-
ity, exchanges, and linguistic accessibility.60 Historical path-dependency is, also in
this region, significant, defying any scholarly claims concerning emerging ‘global’
exchange or comparisons.
At the same time, however, taking also into account the various other inspir-
ations which were intentionally sought in order to counterbalance the overwhelm-
ing German influence,61 it is difficult to state that such a degree of focused and
deliberate law importation would be the rule. Looking comparatively at the various
CE jurisdictions, one finds a more diverse blend of various influences, foreign as
well as international, steered rather by accidental availability than any deliberate
56 Dupré (n 12) 53–4.

57 Thus again speaking in favour of conceptualizing the patterns of comparative exchange as
chaotic: multiple actors and few simple rules create an infinite variety of patterns, which are individu-
ally difficult to predict, but still happen within certain systemic bounds—see ch 13, section 4.
58 Dupré (n 12) 87–104 identified three key factors which brought about the success of the
German model: prestige; historically conditioned good knowledge of the German law, including
linguistic competence and personal exchange; and the overall suitability of the German model to the
particular interests and needs of the recipient country.
59 All four countries studied here were for most of last 500 years part of the German-Austrian legal
space (Czech Republic, Slovakia, Hungary, and parts of Poland). On the particular case of divided
Poland and the varied influences in its various parts, see, eg: R Schnur, Einflüsse des deutschen und des
österreichischen Rechts in Polen (Walter de Gruyter 1985).
60 As aptly captured with respect to Hungary by L Sólyom: ‘Half the judges of the first Hungarian
Constitutional Court had spent years in Germany mostly as Fellows of the Humboldt Foundation.
One could meet Humboldt Fellows in most of the courts from Lisbon to Warsaw.’—L Sólyom, ‘The
Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary’
(2003) 18 International Sociology 133, 156.
61 See text to n 17.
design. One should perhaps furthermore not overestimate the overall knowledge of
the foreign model actually invoked and the genuine judicial analysis of it before
using it. The internally driven deliberative process is, in practice, often superseded
by more of an argumentative impressionism, in which it is either the political
weight or an almost religious belief in the virtues of the Western model, or in fact
both, which supplant the substantive reason in a judicial decision.62
Whatever terminological label might be eventually put on this phenomenon, it is
still quite surprising how little opposition such strong one-sided German influence
caused, be it in the scholarly or political forum. Historically seen, the relationship
between Germany and its smaller neighbours in CE was not, especially in the first
half of the 20th century, a particularly harmonious one. At the same time, however,
such a considerable legal influence of Germany in CE over the last two decades,
turning these countries basically, somewhat cynically put, into German legal
colonies, has not stirred any significant disagreement.
Finally, it has been suggested that there is a correlation between the process of on-
going transformation in a country and the higher amount of the use of non-
mandatory foreign models in judicial decision-making. It was furthermore claimed
that basically out of necessity, the otherwise laid-back Continental courts in post-
communist CE and especially the newly created constitutional courts became
avenues of societal change. As the traditional gates for the inspiration and discussion
of comparative models in a Continental legal system, ie the legal scholarship and the
legislature, were either incompetent or too busy to provide for the legal transition at
sufficient speed, the courts started to engage directly with foreign models themselves.
The intriguing ensuing question is whether or not this is just a temporal
phenomenon, limited to times of transition, or whether it will linger on. One
prediction could be that this is indeed only a temporal phenomenon which will
decline once the system creates its own legislation, case law, and scholarship, which
will realign itself with the new values and will be able to provide enough guidance to
the adjudicators working within the system.63 Such visions might be also reinforced
by the general shift in the mood in CE countries, which could be labelled as a
certain disenchantment with the West. Not only is the phase of institutional
optimism64 and uncritical reliance on Western-imported models now passed in
CE. With rising expertise in the former recipient countries, exchange, and mutual
awareness, it is also becoming clear that the models and legal solutions which were
once promoted, exported, and blindly taken over in these countries also encounter
considerable difficulties in their countries of origin.65 All these factors, together
62 See ch 12, section 1.1 and ch 13, section 2.2.

63 Cf for instance the experience of Germany after the Second World War or of South Africa today.
In both cases, the use of comparative arguments dropped after certain period. See ch 3, section 2.1.
64 ‘Institutional optimism’ is a label for a conviction, shared not only in the transforming countries
but also by a number of international governmental and non-governmental organizations, that

democracy and rule of law can be produced by establishing a set of institutions. See generally:
P Kende, ‘L’optimisme institutionnel des elites postcommunistes’ in Mény (n 54).
65 A prime example in this respect is the creation of Latin-styled judicial councils in Central and
Eastern Europe. Universally promoted in the second half of 1990s and in the period up to the accession
of the CE countries to the EU, these councils have had negative if not disastrous effects on judicial
272 The Deviations
with the gradual maturing and psychological self-revaluation of these countries,
which may no longer consider themselves to be in transition and/or in need of
foreign help, may lead to less reliance on foreign models.
However, an opposite prediction is also plausible. The process of judicial
transformation was characterized by a gradual change in the perception of legal
methodology, bringing in more and more reasoning going beyond the mere text of
a statute, including comparative considerations. It could be claimed that compara-
tive arguments are by now perhaps not frequent but still standard arguments in
judicial decision-making at least at the supreme level and they will continue to be.
Moreover, the on-going re-evaluation of the importance of judicial decision-
making in Continental legal cultures reinforces and actually petrifies the shift in
the constitutional balance as to who is supposed to accommodate legal change. It is
thus more acceptable for courts to further develop the law, if necessary also by the
use of comparative arguments. One could thus also conclude that the constitutional
shift brought about by the particular settings of legal transition is likely to stay.
In the absence of any legal revolution in the near future, whose logic is always
dialectic, one may also hope for a sound compromise. With the transformation now
over,66 it is very likely that the rhetorical over-use of comparative arguments may be
replaced by the arguably more natural tolerant openness: comparative inspiration is
most welcomed when internally genuinely needed, but no longer a political must in
order to prove to oneself and to the world that one is a good pupil.
3. Non-comparisons
3.1. Superiority, Exclusivity, and Political Closures
Disagreement about authority, in particular about the foreign one, is as old as the
mankind. With tongue in cheek, it may be suggested that had there been any
sources originating from that period, one could certainly find instances of disagree-
ment within Neolithic tribes whether or not the way something is being done in the
neighbouring tribe should be of any relevance for deciding disputes in this tribe of
reform and independence in these countries. Further: M Bobek, ‘The Administration of Courts in the
Czech Republic—in Search of a Constitutional Balance’ (2010) 16 EPL 251.
66 A legal transformation may be conceived of at different levels. In the narrow sense, it just means
the shift from one regime to another, a mere change in the constitutional structure. In the broader
sense, it means much more: not just a constitutional shift, but also a change in values, their
enforcement, and the real life of the new institutions. See, eg: C Varga, Transition to Rule of Law:
On the Democratic Transformation in Hungary (Loránd Eötvös University 1995) 74. Varga quotes the
former president of the Hungarian Constitutional Court, L Sólyom, who claimed that for him, the
‘transition’ was, from the legal point of view, finished in October 1989. From then on, Hungary has
been a law-governed state and there is no further stage to transit to.
Pragmatically speaking, both types of transformation are by now over in CE countries. In spite of a
number of lingering deficiencies, there is no more drive or spirit of transformation present. Quite to the
contrary: a number of countries in the CE region have, after the external pressure brought about by the
EU accession conditionality has been removed, reverted to various degrees of problematic post-
communist nationalistic rhetoric and policy.
Non-comparisons 273
ours. The structure of the challenge is also universal: if materials or solutions

coming from elsewhere are argumentatively helping just one party, the next logical
step of the disagreeing other party, which cannot do anything with the substance of
the argument, is to challenge its source, ie the strange, foreign authority itself. The
same motives, reactions, and patterns could thus be found when Hittites looked at
Egyptian laws, Carthaginians at Roman law, or when some early Middle-Age
Barbarian Franks inspected the laws of other Germanic tribes and so on.
The same challenges can be also found in modern times, in systems which have
been traditionally relatively open, such as the English law. For instance, in 1770,
Lord Mansfield, by then Lord Chief Justice, presided over a libel case. The decision
given by Mansfield was later attacked in the press. One of the stronger attacks came
from an anonymous author hidden under the pen name Junius. Junius first abused
Lord Mansfield for being a Scotsman and a Jacobite. Then he added:
In contempt of the common law of England, you have made it your study to introduce
into the court where you preside, maxims of jurisprudence unknown to Englishmen.
The Roman code, the law of nations, and the opinions of foreign civilisations, are your
perpetual theme; but who ever heard you mention Magna Carta or the Bill of Rights
with approbation or respect? By such treacherous arts, the noble simplicity and spirit of
our Saxon laws were first corrupted.67
Similar grumbling with respect to the use of foreign materials in an individual case
or even their occasional outright rejection can normally be accommodated within
an open system. When an originally open system starts gliding towards a semi-open
or even a closed one is when such grumbling is no longer a matter of occasional
disagreement. It is superseded by large-scale contestation of the value of foreign
inspiration. The key systemic difference is that contesting the foreign is not just
utilitarian reasoning strategy with respect to an individual case, but becomes a
general policy or ideology, which is maintained irrespective of the outcome of the
individual case. The foreign and its potential persuasive influence are flatly rejected,
even if their use might have actually benefited the individual actor in the specific
settings of the individual case. Similar changes and reasons for them are exterior to
law: it is the political domain which instructs the legal domain that some types of
the foreign inspiration or all of it are no longer to be considered authoritative.
There are a number of historical instances of such politically imposed non-
comparisons. An example of a closure is the already mentioned prohibitions put in
place in a number of Swiss cantons in the early-19th century, prohibiting Swiss
judges to cite in support of their opinion foreign laws or foreign authority.68 In
spite of these prohibitions being formulated in a general way, the intent behind
them was to shield, for political reasons, the new Swiss codifications from the
overwhelming influence of the French Code civil. A much stronger (and much
67 E Heward, Lord Mansfield (Barry Rose 1979) 129.

68 See ch 12, section 2. The already mentioned Art 3 of the Code civil of Canton Waadt of 1819
read: ‘Il est défendu aux Juges de citer, comme motif de leur jugement, une loi ou une autorité
étrangère, pout expliquer le présent Code, ou pour y suppléer.’
274 The Deviations
more intolerant) example of politically imposed non-comparisons are communist
countries in CE immediately after 1948. With the exception of occasional ritual
invoking of the superiority of the Soviet model, the foreign was banned.69
To describe the extreme ends (a complete closure or an unfettered openness) of a
spectrum tends to be less difficult than to capture the centre. Semi-open systems are
those in which the use of foreign inspiration is not entirely banned. It is nonetheless
considered improper. There would typically be no ‘hard’ rules banning the use or
the citation of foreign authority, such as express statutory prohibitions or immedi-
ate sanctions for judges who would do so.70 There is, however, a widely shared
belief or even a consensus that to compare is not a proper way for judges to proceed.
If notwithstanding this they do so, they might not be directly sanctioned. Their
way to reason is nonetheless considered either as an oddity or leads to widespread
contestation of the decision given.
Historical examples of such semi-open systems in Europe are given by larger, one
may say ‘imperial’ systems, which, at a certain stage in their history in the past 200
years, were convinced of their own superiority. Such political, ideological beliefs were
then translated into suggestions of non-comparability of the unique, exclusive national
legal system with any other system. It is only of little importance whether the reasons
for the alleged uniqueness were located in some exclusive features of the historical
national Volksgeist, as was the case in Germany, or in the belief in the enlightened
intellectual superiority of own model, which was there only to rayonner abroad but
had nothing to learn from the others, as was the case in France. The common
denominator of these past cases was that the political beliefs in one’s own unique
greatness became translated into the legal forum. There was either nothing one could
learn from others because one was so superior or because one was so special.
3.2. The American Deviation

A current and abundantly discussed example of an originally open system that has
started shifting towards a semi-open one is the American deviation.71 More
precisely, it is the growing unease in some parts of the US scholarship, judiciary,
and political circles about US courts and in particular the US Supreme Court
quoting foreign legal sources as non-mandatory inspiration. The size and the scope

70 In for instance Czechoslovakia after 1948, there were no statutory provisions that expressly
prohibited the judges from using comparative arguments. Needless to say, however, that even lacking
express statutory basis, the political sanction for a judge who would try to do so would be swift. To be
precise: dismissive or negative rhetorical comparisons, which would be praising the superiority,
fairness, and progressiveness of the socialist law as opposed to the outdated, oppressive, and unjust
capitalist laws would of course be allowed. Such ideological rhetoric, however, had very little to do with
any comparative reasoning.
71 The term ‘deviation’ here as well as in this entire chapter is used in its neutral, dictionary sense,
meaning just ‘the action of departing from an established course or accepted standard’. It is, however,
also true that the weak will of the author of this book could not resist the temptation of returning the
deviation ‘favour’ back to the other side of the Atlantic—cf the title of chapter ‘IV.’ in JP Dawson, The
Oracles of the Law (The University of Michigan Law School 1968) 263, as later discussed by other
authors, most notably JH Merryman, ‘The French Deviation’ (1996) 44 AJCL 109.
Non-comparisons 275
of the disagreement warrants the categorization of the current US (federal) system

as being en route towards a semi-open system, if not already there: the propriety of
comparative inspiration is being contested systematically, ideologically, and on a
large scale.
In contrast to the previous chapters of this book with respect to the European
experience, the final part of this chapter has no ambition to offer any deep
discussion on the US practice or scholarship.72 The remaining argument in this
chapter is thus not based, contrary to the individual studies in the second part of
this book, on any larger primary research. What is nonetheless offered is a look at
the current US controversy through the eyes of European experience and history,
analyzed and discussed in the previous parts of this book. There is one question in
particular which stands out in this respect: why is it that the debates on the subject
of the use of foreign law in the US courts have now become so heated and, in a way,
pathological?73
a) The Parameters
There are three parameters of the current US debate which are worth highlighting
at the outset. First, the US federal system has traditionally been an open one. By its
origins an English-styled common law jurisdiction, it has been based on an open
notion of sources, accommodating towards extra-systemic persuasive authority.74
Similarly to the English legal system and its colonial offspring around the world, the
system never became nationalized and dogmatically closed in the way Continental
civil jurisdiction became in the course of the 19th century. The pool of sources is
thus potentially very broad. Furthermore, for most parts of its history, the US
federal system has been in fact a ‘recipient’ one, drawing considerable inspiration
from foreign sources, chiefly European.75
72 From the vast array of recent works on this topic, see in particular J Waldron, ‘Partly Laws
Common to All Mankind’: Foreign Law in American Courts (Yale University Press 2012); VC Jackson,
Constitutional Engagement in a Transnational Era (OUP 2010); M Ignatieff (ed), American Exception-
alism and Human Rights (Princeton University Press 2005).
73 With all due respect, death threats to Supreme Court Justices, suggestions to impeach any federal
judge who cited ‘foreign law’, and bills brought forward in the US Congress concerning the ‘proper’
interpretation of the US Constitution can hardly be said to form a part of a normal legal discourse,
certainly in perhaps somewhat ‘soft’ European eyes. Cf, eg: DJ Seipp, ‘Our Law, Their Law, History
and the Citation of Foreign Law’ (2006) 86 Boston ULR 1417, or, with respect to the various
congressional bills, by PJ Messite, ‘Citing Foreign Law in U.S. Courts: Is Our Sovereignty Really at
Stake?’ (2005–2006) 35 Baltimore ULR 171. Yet another level of ‘discussion’ was reached once fears
started to be voiced that foreign courts might intentionally draft their judgments maliciously in order to
harm the US, in the hope that a US court would cite that judgment. See S Choudhry, ‘Migration as a
New Metaphor in Comparative Constitutional Law’ in S Choudhry (ed), The Migration of Consti-
tutional Ideas (CUP 2006) 12.
74 See eg the discussion on the value of foreign, in particular English, precedents for US courts in eg:
Mr Justice Miller, Introductory Address on the Use and Values of Authorities (JM Power Wallace 1888)
10ff or H Campbell Black, Handbook on the Law of Judicial Precedents or the Science of Case Law (West
Publishing 1912) 428ff.
75 With the exception of a period of ‘Anglophobia’ after the declaration of US independence
(followed, in some states, even by express prohibitions to cite English cases issued after 1776), English
and European inspiration in the US judicial opinions has been a constant feature in the past. See
276 The Deviations
Secondly, as far as the current use of comparative inspiration is concerned, there
appears to be very little difference in the actual practice of the highest European
courts and the US Supreme Court. Comparing the quantity76 as well as quality77 of
comparative inspiration in the USSC with the established (ie not transitional)
European systems studied in this book, one fails to see any significant difference.
The amount of direct references is, compared with the overall amount of cases
decided, marginal. The argumentative uses of foreign law are limited to points of
illustration or confirming arguments. However, what differs profoundly and what
will be further discussed is the style of the scholarly and political debate which is
carried out in relation to this (largely similar) practice.
Thirdly, the scholarly and political debates on the issue of quotation of foreign
authorities in the USSC concentrate on constitutional interpretation and especially
on decisions issued in heavyweight constitutional litigation, and, within these,
particularly on the question of unenumerated rights under the Ninth and Four-
teenth Amendments.78 Other courts or other, non-constitutional legal issues, but
still involving uses of foreign law, attract much less attention.79
b) The (Substitute) Problem

The listed parameters, especially the second and the third one, have already
foreshadowed the true nature of the problem. Within the US debate, comparative
reasoning in itself is not the real problem. Foreign law serves as a rather unhappy
proxy and a captive for a different debate, namely the political debate on proper
constitutional interpretation.
Why foreign law has become the latest battlefield for this endless debate in the
course of the last fifteen years or so may be open to debate. What is, however, clear
is that a particular political constellation met at a certain point with pragmatic
reasons why no longer to compare with others. The political tensions within the
US between the more liberal (or universalist) visions of America and the more
generally: Seipp (n 73) 1425ff; SG Calabresi, ‘ “A Shining City on a Hill”: American Exceptionalism
and the Supreme Court’s Practice of Relying on Foreign Law’ (2006) 86 Boston ULR 1335, 1341ff;
DA Farber, ‘The Supreme Court, the Law of Nations, and Citation of Foreign Law: The Lessons of
History’ (2007) 95 California LR 1335. On the German inspiration in the US, see the various essays in
M Reimann (ed), The Reception of Continental Ideas in the Common Law World: 1820–1920 (Duncker
und Humblot 1993) and M Reimann, Historische Schule und Common Law (Duncker und Humblot
1993).
76 See, eg: D Zaring, ‘The Use of Foreign Decisions by Federal Courts: An Empirical Analysis’
(2006) 3 JELS 297.

77 See, eg: M Tushnet, ‘Referring to Foreign Law in Constitutional Interpretation: An Episode in
Culture Wars’ (2005–2006) 35 U Baltimore LR 299.

78 Further M Rosenfeld, ‘Comparative Constitutional Analysis in United States Adjudication and
Scholarship’ in M Rosenfeld and A Sajó, The Oxford Handbook of Comparative Constitutional Law
(OUP 2012) 43ff.
79 The typical attributes used for other areas of comparative inspiration or general approach to
foreign and international law (including its mandatory uses, in particular in the area of international
private law) include ‘scant’, ‘marginal’, or ‘provincial’. See, eg: PM McFadden, ‘Provincialism in
United States Courts’ (1995–1996) 81 Cornell LR 4 or DS Clark, ‘The Use of Comparative Law
by American Court (I)’ (1994) 42 AJCL Supplement 23.
Non-comparisons 277
conservative (exclusivist) ones have sharpened in the last two decades.80 About a
decade ago, these political reasons met with a particular constellation of a set of
highly morally and politically loaded constitutional cases81 coupled with the fact
that in these cases, it was just one party to the dispute which could profit from using
a comparative argument. Running a comparative argument thus became a journey
into a known destination called liberalization. The understandable reaction of any
opponent who cannot employ the same type of argument is to reject the method as
such.82 Perhaps because of such a political and functional overlap in constitutional
rights adjudication in the past decade, a practice which beforehand did not stir
many concerns in the US at all has become the centre of heated debates and
attention.
The overall parameters of the debate on the proper constitutional interpretation
and the tensions between originalism83 and the more dynamic84 visions of consti-
tutional interpretation are something one has encountered at several places in the
preceding chapters of this book. The term originalism could just be replaced with
exegesis or the various interpretative strands proclaiming their fidelity to the
conjured will of the historical legislator, whereas dynamic interpretation could be
substituted with the more modern strands of adjudication. A similar story already
encountered at various points in this study is being retold, albeit obviously in
different settings and with different labels attached.
One is, however, clear: which of the strands will eventually prevail is not a legal
question. A political decision once reached will then be translated into legal
definition of permissible authorities. Such definition can naturally be influenced
by the legal discourse; the decision itself will, however, by its nature be political.
80 See Rosenfeld (n 78) 46ff. Generally see Ignatieff (n 72).

81 Including issues like the constitutionality of the execution of criminals with mental retardation
[Atkins v Virginia, 536 U.S. 304 (2002)]; prohibition of homosexual intercourse between adults
[Lawrence v Texas, 539 U.S. 558 (2003)]; or juvenile death penalty [Roper v Simmons, 543 U.S. 551
(2005)].
82 The utilitarian nature of the rejection of arguments drawn from foreign law as the result of
particular political constellation also becomes apparent if one considers that before these cases, judges
from the ‘conservative’ wing did not oppose comparative inspiration per se. See for instance a scholarly
contribution by the late Chief Justice William Rehnquist from 1993 entitled ‘Constitutional Courts-
Comparative Remarks’ in P Kirchhof and DP Kommers (eds), Germany and its Basic Law: Past, Present
and Future—A German-American Symposium (Nomos 1993) 411–12. In this contribution, it was
stated that the US should and will look into the practice of other established constitutional courts for
inspiration in constitutional interpretation. On the other hand, the liberal justices may not be, if
deciding outside the area of basic rights, always keen to employ a comparative argument—see, eg: the
dissenting opinion of Justice Breyer in Eldred v Ashcroft, 537 U.S. 186 (2003). Further see: D Barak-
Erez, ‘The Institutional Aspects of Comparative Law’ (2008–2009) 15 Columbia JEL 477, 479.
83 See especially: A Scalia, A Matter of Interpretation: Federal Court and the Law (Princeton
University Press 1997). See also: SG Calabresi (ed), Originalism: A Quarter-Century of Debate (Regnery
2007).
84 See especially: S Breyer, Active Liberty: Interpreting a Democratic Constitution (OUP 2008). See
also (from outside the US but with the similar ideological outlook): A Barak, The Judge in a Democracy
(Princeton University Press 2006).
278 The Deviations
c) The Escalation
Comparing the US with Europe, there are several factors peculiar to US law and the
US scholarship which exacerbate this, in a way not new debate, into its contem-
porary pathological dimensions. Four sets of such factors will be briefly mentioned
here: overall openness to the international domain; constitutional factors; meth-
odological factors; and factors relating to the US legal scholarship and the type of
discourse it generates.
First, as already discussed above,85 the constitutional outlook adopted in Europe
after the Second World War is ‘internationalization’ and especially ‘Europeaniza-
tion’. With three layers of mandatory foreign in today’s Europe, it is hard to claim
or to believe that national legislators are in fact controlling the rule-making process.
On the other hand, the US relationship towards the international is ideologically
very different. It still believes in the primacy of the national system, democratic
accountability, separation of powers, scope of judicial review, and the counter-
majoritarian difficulty (and the counter-majoritarian obsession it generates). Here
again, it is the political system which sets the overall approach to the international;
judges tend to be dragged along.
Secondly, institutionally speaking, the stakes in the US constitutional interpret-
ation are very high. Constitutional amendments, which might overturn the inter-
pretation given by the USSC, are in practical terms excluded. At the same time, a
polarized society, which finds it difficult to reach a consensus which could be
translated into legislation, leaves more and more decisions to be resolved in the
judicial forum. The judicial branch is obliged to decide and in the area of
interpreting the constitution, the decisions are final.86 One may contrast this
with the relative ease of legislative, even constitutional overrides in the Continental
countries and with the certainly nominal ease of such an override in the UK.87
Against such settings, it becomes apparent why a lot of the political steam is
channelled into the debates on the decisions and the decision-making of the
USSC: the higher the stakes, the more heated the debate.
Thirdly, in terms of methodology, there appears, at least to a Continental outsider,
very little agreement on methodological questions as to how courts should proceed
and what the acceptable way of solving cases is. This does not mean that there is no
literature on methodology; quite to the contrary, the richness and the diversity of the
scholarship are astonishing. Therein lies, however, perhaps the problem. The visions
are so rich and so varied that a basic agreement on the instructive and protective level
of Rechtsdogmatik, ie solid positivistic works on how judges should proceed, which
generates the mainstream doctrine of a system, is lacking.

86 Not so in the area of ‘mere’ legislation, where Congressional overrides happen relatively
frequently—see generally: J Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary
Court-Congress Relations (Stanford University Press 2004) 76ff.
87 See the individual country reports in D Oliver and C Fusaro (eds), How Constitutions Change:
A Comparative Study (Hart 2011).

Non-comparisons 279
There are some pragmatic virtues to the often despised and ridiculed image of
judges as legalistic application machines, who do nothing but pass syllogistic
judgments. The most important of them is that such partially imposed and partially
self-conjured image protects the judges. It helps to keep alive the fiction that judges
do not make the law; they just find it and apply it within the existing legal
landscape. Such a self-image, coupled with and supported by moderately positivis-
tic legal scholarship, preserves the vision of a restricted and limited judiciary, which
then faces fewer challenges from broader legal, political, or popular circles. Such an
image may not be more than the proverbial fig leaf. It is, however, a protective and
hence useful fig leaf. It provides for the basic consensus on what is acceptable. It
appears to limit judicial discretion. It lends the judicial decision-making the aura of
an exact science, to a great extent devoid of subjective choices. In this way, it
constructs the social perception of the judicial function.
Such constructivist and protective positivistic images of judicial function never
found a favourable ear in the US legal scholarship. In the course of the last century,
legal realism and then various strands of critical approaches to law put the uncer-
tain, hardly predictable subjective judicial choice to the foreground. They may very
well be right. Such assertions, however, deconstruct the societal consensus on the
limits of the acceptable in relation to the judicial function. Instead, they create
radically decisionist images of judicial work, in some extreme visions having no
methodology whatsoever and being entirely exposed to personal preferences and
moods of the judges.
The third escalation factors spills over into the fourth one as well: what is the role
of legal scholarship in all this? The European Continental scholarship has been and
to great extent still is either the partner or even the fatherly guiding figure for the
courts. The scholarship has been doctrinal in the positive sense, constructive, and
cooperative. Frequently perhaps laughed at for being limited, ‘black-letter’ focused,
Continental scholarship has sought to assist the legal practice.88 This ideological
tradition has been supplemented and kept alive also on the personal level: lateral
mobility between the legal scholarship and judicial/legal practice is common, with
law professors becoming part-time or full-time superior court judges, entering high
civil service, or experienced legal practitioners teaching in law faculties. This two-
way traffic helps academia to gain a realist idea with respect to what is going on and
why in legal practice. It brings real-life legal problems to the fore, which can be
tackled in scholarly writings. Such scholarly production is then in turn likely to be
read, because it is able to reflect actual issues and real problems.
Conversely, in the US, there has been an on-going debate concerning the
disjunction of the legal scholarship from legal practice, including judicial practice
88 Generally see eg: S Vogenauer, ‘An Empire of Light? II: Learning and Lawmaking in Germany
Today’ (2006) 26 OJLS 627—on Germany; A Braun, ‘Professors and Judges in Italy: It Takes Two to
Tango’ (2006) 26 OJLS 665—on Italy; N Duxbury, Jurists and Judges: An Essay on Influence (Hart
2001)—on England and France; A Arnull, ‘The Americanization of EU Law Scholarship’ in A Arnull
and others (eds), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (OUP
2008)—on EU law scholarship, concluding in fact, in spite of the title, that the two traditions are still
very much apart.
280 The Deviations
and daily work of the courts.89 There is certainly a grain of truth in such claims in
the particular area of academic debates concerning the use of comparative reasoning
in the US courts. Skimming through the legions of academic articles on this issue,
one may encounter the most exorbitant theories on both sides: the ideal-liberal-
universalistic as well the originalist-conservative one with further dozens of different
approaches in between or beyond these two. They all have, however, frequently one
thing in common: judicial reality is reflected just by perhaps two or three quota-
tions from a decision of the USSC or from an extra-judicial writing of one of the
justices. On the basis of this limited factual information, very bold and sweeping
statements about what the courts do or what the courts ought to do are made.
Moreover, for a (perhaps somewhat) dull, positivistic Continental lawyer, there
is yet another striking feature about the US scholarly debate on the use of foreign
law in courts. It is the amount and the strength of implied or even open political
statements contained in scholarly writings on the subject. Obviously, any piece of
legal scholarship will be framed by values and convictions of its author. The
Continental ‘black-letter’ tradition of legal scholarship, however, conventionally
commands the author to at least try to appear impartial and detached. The author is
supposed to comment on what a court has done; why the case had to be decided in
this way; what are the characteristics of the new law, etc. In a way, such a detached,
rationalist, and ‘objective’ traditional approach is interlinked with the already
discussed judicial style of the Continental courts. Strongly engaged scholarly
writings with activist style and with sweeping statements as to what the law must
look like and what judges must do are not common, at least not in the democratic
and stable periods of European history.
In sum, the often reality-distant politicized debate in US legal scholarship about
the judicial use of foreign law is more likely to further escalate the heated debate
than to provide calm, sober, and constructive help. This is not to say that abstract
interdisciplinary and normative treatises are not good legal scholarship. It is only
suggested that the further the legal scholarship diverges from actual legal practice,
while still claiming to deal with actual law, the more its debates resemble canon
battles between castles in the air. However, even castles in the air define the social
reality and the ensuing academic, political, and popular discussion about it.
d) The Outlook
The argument presented in this closing section has been that as a consequence of
the particular political constellation in the US of the last decade, foreign law became
the new battlefield for a lasting political debate on constitutional interpretation.
A number of other factors, institutional, methodological, and those relating to the
89 For earlier criticisms, see eg: RA Posner, ‘The Present Situation in Legal Scholarship’ (1980–
1981) 90 Yale LJ 1113 or HT Edwards, ‘The Growing Disjunction between the Legal Education and
the Legal Profession’ (1992–1993) 91 Michigan LR 34. For a more recent review of the debates, see eg:
Duxbury (n 88) 38–46 or RA Posner, How Judges Think (Harvard University Press 2008) 204–29.
Non-comparisons 281
style of the US scholarship, have contributed to bringing the debate into its rather
unpleasant present dimensions.
Whether the US system will reassert its traditional tolerant openness or defini-
tively move towards a semi-open system will be a matter of future but imminent
political choice. Even if the exclusivist views were to prevail, this may not be fatal.
Without wishing to sound too condescendingly European, (not just European)
history shows that periods of feelings of legal uniqueness or superiority never last
that long. A different question is what the display of such political preference
signifies for the state of the legal system as such. As one of the most esteemed
American scholars, Roscoe Pound, once noted:
In legal history periods of growth and expansion call for and rely upon philosophy and
comparative law. Periods of stability, striving for perfection of the form of the law
rather than for development of its substance, rely upon analysis and history. ( . . . ) We
may be confident, therefore, that the revival of serious use of comparative law in our
legal literature is a significant sign of the times.90
90 R Pound, ‘Foreword to the “Valuation of Property in Roman Law” ’ (1920–1921) 34 Harvard
LR 227, 227–8.
Conclusions
This book discovered no New World. It designed no groundbreaking theory.

Instead, the aim was to map the outback. The journey into the outback was carried
out in a double sense: geographical as well as methodological. Geographically
speaking, Continental supreme courts appear, at least from the point of view of
contemporary Anglo-American focused international scholarship studying the use
of comparative reasoning by courts, not to be in the limelight. Methodologically
speaking, most of the mapping work these days is carried out from the aeroplane or
by satellite. This means that beautiful and colourful grand pictures of the inland
jungle are produced, which, however, give only very little idea as to the genuine life
in the rainforest, the type of animals inhabiting it, how the various levels of the
forest interact with each other, and so on. This work, conversely, has sought to
explore the various levels of the rainforest, to map the genuine ground and not just
the top of a few of the highest trees, to talk to the natives and to understand their
stories about what they do and why they do it.
This expedition has provided a different picture of judicial use of comparative
arguments from the one repeated in a mantra-like style in the current scholarly
mainstream. The picture is modest in scope. Such sobriety was, however, the
intention: the aim of this book was not to come up, after having performed a
new sovereign Act of Imperial Naming,1 with yet another fashionable normative
hyperbole about what the judges ought to be doing in order to be good pupils of the
new global or transnational articles of faith. The aim was to capture what judges are
in fact doing and why they are doing it when getting inspired from abroad.
National judges do use comparative inspiration. They always have and, unless
there is a forced political closure of a legal system, they always will. In quantitative
terms, however, the current use of non-mandatory foreign authority in the Euro-
pean supreme courts is minimal. In qualitative terms, the extra work of going out
and looking for further inspiration is reserved to a handful of significant and/or
complex cases. It is certainly not daily judicial routine.
This minimal engagement with non-mandatory foreign authority ought to be,
however, put into a proper perspective by immediately adding that there is, at the
same time, in all the jurisdictions studied, a considerable engaging with the
mandatory foreign: EU law, the law of the ECHR, and international law. Such
1 Sceptically JHH Weiler, ‘Prologue: global and pluralist constitutionalism—some doubts’ in G de
Búrca and JHH Weiler, The Worlds of European Constitutionalism (CUP 2012) 12.
Conclusions 283
mandatory foreign is, however, not anything a national judge would freely choose.
Considering these legal orders in the individual case where they are applicable is a
duty imposed on judges by the national legislator or constitution-maker. The
displayed judicial choice often runs contrary to the will displayed by the legislator:
elaborate judicial assumptions or tests are devised which seek to minimize the
extent of engagement with the additional system, or, in the less inventive scenarios,
to ignore the mandatory foreign materials altogether.
Empirical findings as to the genuine use of non-mandatory foreign authority
have been confronted with theories and methods offered on the national level for
explaining what judges are doing and what they ought to be doing. Nothing has
been found in the current practice of the European supreme courts that moderate
positivist and state-centred theories of legal interpretation were not able to account
for and to justify. On the theoretical level, it has been demonstrated that positivistic
theories of legal interpretation are fully compatible with the current use of compara-
tive arguments by courts.
The use of non-mandatory arguments based on foreign law is an internally
driven exercise, catering for the need of the legal system to close gaps in the law
or/and to carry out societal update. For these purposes, the national positivist legal
theories allow for and in various forms also foresee and incorporate extra-systemic
arguments. With respect to foreign inspiration, judges may either be looking for a
solution or they may be in need of justifying an already found solution. These two
categories do not always overlap. The conventions regarding the expected style of
judicial reasoning together with the judicial strategy pursued in the particular case
determine whether foreign inspiration will be sought and if so, whether it will be
quoted.
Comparative reasoning in national supreme courts is not about objectivity or
truth. It is about finding inspiration for devising new approaches and new solutions
or about justification of a solution already reached, be it under the influence of
comparative inspiration or without. The process is utilitarian and pragmatic. A high
degree of general, not case-specific political lead is involved in the process, particu-
larly in selecting foreign systems from which to get inspired and, above all, when
considering whether a foreign system may be quoted as authority in a judicial
decision.
Legal understanding of comparative authority follows the political or the overall
societal perception prevailing within the legal system at the time in question.
Furthermore, contrary to assertions claiming there is a ‘global’ marketplace for
judgments or ‘global’ conversations or exchanges between judges, the individual
studies in the second part of this book have shown that judicial comparisons remain
in fact fairly traditional and deeply provincial.2 Typically just a handful of countries
within the same political and cultural circle provide inspiration for each other,
2 Not only in law, but also in social sciences generally, including social science research. Critically
see eg: B Jobert, ‘Politique de la comparaison’ in M Lallement and J Spurk (eds), Stratégies de la
comparaison internationale (CNRS 2003) 326–7.
284 Conclusions
certainly with respect to Europe today. The patterns of comparative authority and
influence remain remarkably conservative.
***
The above outlined parameters are able to account for and justify the current
practice of comparative reasoning in European supreme courts. It could certainly be
argued that such understanding of the influence of the foreign onto the national
legal domain is too legalistic and only partial: by drafting the scope of research
presented in this book narrowly, focusing only on non-mandatory considerations of
foreign materials as evidenced in citations, the argument presented necessarily
undervalues the real influence of the ‘transnational’ or the ‘global’ on the domestic
judicial function.
It is certainly true, as has been repeatedly admitted, that there always will be a
portion of non-acknowledged and non-traceable inspiration and influence. There is
also no doubt that within the mandatory foreign, judicial function in contemporary
Europe becomes more and more interconnected: it becomes more and more
difficult, in the avalanches of mandatory EU materials, case law of the ECtHR,
and international treaties and other documents, to find an area of national law
untouched by the mandatory foreign sources.
However, it is precisely the great amount of ‘must’ materials which the national
judges in Europe today are obliged to understand and apply that arguably generates
the opposite reaction than the one commonly assumed in scholarly writings.
Imposed ‘globalization’ or ‘transnationalism’ does not generate greater judicial
openness and willingness to engage with others, but rather the opposite: judicial
retreat and mental closedness due to suffocation. This is partially the case with
respect to the current use of non-mandatory foreign, ie the use of traditional,
horizontal comparisons for judicial decision-making. Politically ordained openness
to masses of mandatory foreign means less judicial appetite for the traditional non-
mandatory comparisons. Moreover, the same suffocation logic also applies to the
overall assumption about globalization and the internet age. Greater access, both
physically and linguistically, to legal information from all around the world (ie all
being available in English on the internet, just a mouse-click away) may generate
rather the opposite reaction than assumed: greater selectivity, citation restrictions,
and mental closedness.
The issue of access leads to the question of the genuine quality of the judicial
exchange in today’s Europe, be it in mandatory or non-mandatory areas. Again,
there is no shortage of metaphors, ranging from dialogues and conversations to
judicial marketplaces of ideas and judicial communities. As the narrative provided
in this book for non-mandatory comparative inspiration was one of self-interest
driven, utilitarian copying from others and/or invoking their authority, dialogues
implying metaphors were avoided. It may be suggested that judges do not seek
comparative inspiration in order to engage, to dialogue with the system they copy
from. With the exception of some instances of the preliminary rulings procedure
under Article 267 TFEU, the fashionable metaphors of dialogues or conversations
hardly capture the judicial reality in Europe today, unless the notion of a ‘dialogue’
Conclusions 285
has not been altogether degraded to a Facebook-style judicial friendship.3 Is one-

sided self-posting of supreme courts online in order to be seen really a dialogue, an
exchange? Can one call a dialogue a rather shallow public relations exercise, in
which one is judged by the amount of friends in one’s profile, and mutual exchange
of views is limited to incoherent one-sided exclamations in reaction to odd pictures
posted on someone else’s wall, in which the amount of approving smilies and
exclamation marks helps to disguise the lack of real understanding of the back-
ground and the context?
***
All these mildly sceptical (or rather realistic) conclusions are not to state norma-
tively that sometime in the future, the style of judicial work, its authorities, and the
judicial allegiance might not shift or be rearranged. The idea that law is an
autonomous network of internally consistent commandments of one single na-
tional legislator is the invention of the last two centuries or so. A glance at legal
history tells us that other arrangements as to what is law, what its sources and its
authority are, are possible. Moreover, the same glance confirms that sooner or later,
there is always a change. Reference frameworks may expand. Wider communities
may be established.
No such shift is, however, (yet) detectable in the practice of the European
supreme courts studied in this book. Critical normative theories challenging the
traditional approaches have nonetheless one aspect in common: they seek, by
different means and using diverse terminology, to redefine the frame of reference
for national judges as consisting of a greater community than a nation state. The
frame of reference now ought to be something ‘global’, ‘transnational’, ‘universal’,
‘international’, ‘pluralist’, ‘world-wide’, ‘new world order’, etc. A substantial
number of such studies do little more than provide yet another label and another
fancy metaphor for the same normative argument, namely that the institutional as
well as substantive framework for the work of the national judge ought to change.
Such a community would most likely still be governed by the same principles
(democracy, rule of law, accountability, etc), also in order to secure continuity and
acceptance, but its reference framework and thereby also valuations would operate
on a larger scale. Thus, the engagement with the foreign4 would become structur-
ally incorporated into the new larger design.
Unfortunately, most of these studies limit themselves to a critical or destructive
element, with the constructive one containing just a few universalistic appeals, or
lacking altogether. In terms of method and processes, they hardly offer any viable
alternative to the ‘old’, ‘nationalistic’ or ‘positivist’. They are thus of only little
interest to national practitioners, including judges, however ‘open-minded’ or
‘internationalist’ they may be. The situation is similar to an estate agent trying to
convince someone else to leave their old house (because it is shabby, the rooms are
3 I am much obliged to Bruno de Witte for this fitting Facebook metaphor (in personal conversa-
tion on 31 March 2011).

4 Which presumably would by that time no longer be called foreign?
286 Conclusions
too small, the heating burns too much energy, and it is altogether not an environ-
mentally considerate house) and move into a new house, of which, however, there
is just about one third of the roof constructed and available at the moment.
At the same time, however, similar studies are certainly useful. While flipping
through the colourful and alluring prospectus of the house blueprints in the Brave
New World, the owner of the shabby old house might get ideas for partially
mending and adapting the old structure while still inhabiting it. The idealistic
studies thus help to enlarge the limits of the possible and acceptable. They help to
reconsider and to readjust traditional views, at least a little.
This is precisely what has been happening in legal science in the past. Historical
parallels are available: for instance, the gradual loosening of the grip of the legislative
will in the interpretation of statutes follows a very similar pattern. The traditional
exegesis or notion-building syllogisms are challenged by critical approaches. These
criticisms are nonetheless too vague and fail to secure any broader support. They
help, however, the more moderate compromise visions, which typically integrate
some of the critical challenges, to define themselves and to become eventually
mainstream theories.5
One of the reasons for the viability of the often challenged nationalistic positiv-
ism is its helpful and thus alluring reductionism. It gives the impression of clarity,
hierarchy, and conclusiveness. Above all, however, it provides for a manageable
number of legal sources, an understandable legal landscape, and hierarchies. Some-
times, these may not be more than false promises. However, to any judge who
typically has enough problems already with the issues pertaining to the case at hand,
it offers a safe and calm haven. This does not mean that the judge would necessarily
have to be a ‘limited’ person in any way. It only means that practitioners, in contrast
to academics, do not appreciate theories that increase rather than reduce the
complexity.
Scholarly calls for greater use of comparative inspiration by courts will always
meet deaf judicial ears if doing comparative law means running a limitless argument
which makes judicial reasoning subjectivist and potentially arbitrary. Judges wish to
be bound. Contrary to assumptions somewhat hastily made in some of the
literature, it is difficult if outright impossible to find a judge who would be
happy about having to exercise unfettered discretion or would be striving for
more and more power in order to rule the world in an activist manner. On the
contrary, the vast majority of judges have a horror of legal vacuum. They are
grateful for as good as any helpful authority they can find in the support of a
reasonable solution to a case.
At the same time, judges are poor revolutionaries. They are the conservative and,
in a way, even the reactionary element in any national legal system. They may be
eventually convinced that adopting a new approach to X or reinterpreting Y should
be carried out. But this will not happen without a fair degree of argument and
5 A new theory is a vulture living off the entrails of its predecessor(s). Generally see TS Kuhn, The
Structure of Scientific Revolutions (3rd edn, The University of Chicago Press 1996), in particular ch XII
(144–59). But see: K Popper, The Logic of Scientific Discovery (Routledge 2002) 37–73.
Conclusions 287
persuasion from the legal scholarship, other legal professions, and/or the parties in
the particular case.
The same applies to comparative inspiration taken from other systems. On the
Continent, there is a clearly voiced preference, coming from judicial as well as
academic circles, for scholarly comparisons being the proper avenues for the
integration of a new idea into the legal order. Twofold justification is offered:
pragmatic and constitutional. Pragmatically, legal scholarship has the time and
resources to play with foreign ideas. Constitutionally, it is better if the range of
possible ideas is firstly digested by the legal scholarship and the emerging main-
stream opinion then taken over by the judiciary.
Such a scholarly digestion process may, in terms of legitimacy, provide the
missing link to the use of comparative arguments by courts. Unlike direct compari-
sons carried out by courts themselves, comparative ideas selected, discussed, and
suggested by the legal scholarship limit, to some extent, the range of conceivable
solutions. In a way therefore, judges become yet again bound, this time by the
voices of the legal scholarship.
At the end of the day, it will be always legal scholarship which will play the
essential part in planting new ideas, drawn from comparisons, into judicial heads.
This primary responsibility cannot be passed on onto the judges by declaring that it
is now the duty of courts to become places of comparative study. The periodically
invoked resurrection of comparative legal studies will certainly not happen in
courts. Those who think it will are looking for the wrong Messiah.
Select Bibliography
‘A conversation between U.S. Supreme Court Justices’ (2005) 3 International Journal of
Constitutional Law 519
Adamovich, L., ‘Rechtsvergleichung im Verfassungsrecht’ in Stefan Hammer and others
(eds), Demokratie und sozialer Rechtsstaat in Europa: Festschrift für Theo Öhlinger (Vienna,
Universitätsverlag 2004)
Adams, M. and Bomhoff, J. (eds), Practice and Theory in Comparative Law (Cambridge,
Cambridge University Press 2012)
Albi, A., EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge,
Alexy, R., Theorie der Grundrechte (Baden-Baden, Nomos 1985)
——, Theorie der juristischen Argumentation: Die Theorie des rationalen Diskurses als Theorie
der juristischen Begründung (Frankfurt, Suhrkamp 1991)
Allen, C.K., Law in the Making (7th edn, Oxford, Clarendon Press 1964)
Aragoneses, A., Recht im Fin de siècle: Briefe von Raymond Saleilles an Eugen Huber (1895–
1911) (Frankfurt, Klostermann 2007)
Arnaud, A.J., Pour une pensée juridique européenne (Paris, Presses universitaires de France
1991)
Arnull, A., ‘The Americanization of EU Law Scholarship’ in A. Arnull and others (eds),
Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford, Oxford
University Press 2008)
Aubin, B., ‘Die rechtsvergleichende Interpretation autonom-internen Rechts in der
deutschen Rechtsprechung’ (1970) 34 Rabels Zeitschrift für ausländisches und inter-
nationales Privatrecht 458
—— and Zweigert, K., Rechtsvergleichung im deutschen Hochschulunterricht: Eine Bestands-
aufnahme und Reformvorschläge (Tübingen, Mohr Siebeck 1952)
Avril, P., (ed), La création du droit par le juge (Paris, Dalloz 2006)
Badinter, R. and Breyer, S. (eds), Judges in Contemporary Democracy (New York, New York
Barak, A., The Judge in a Democracy (Princeton, Princeton University Press 2006)
Barak-Erez, D., ‘The Institutional Aspects of Comparative Law’ (2008–2009) 15 Columbia
Journal of European Law 477
Bartels, H.J., Methode und Gegenstand intersystemarer Rechtsvergleichung (Tübingen, Mohr
Siebeck 1982)
Baudenbacher, C., ‘Judicial Globalisation: New Development or Old Wine in New
Bottles?’ (2003) 38 Texas International Law Journal 505
Beatson, J. and Zimmermann, R. (eds), Jurists Uprooted: German-speaking Émigré Lawyers in
Twentieth-century Britain (Oxford, Oxford University Press 2004)
Becker, P. and Von Krosigk, R. (eds), Figures of Authority: Contributions towards a Cultural
History of Governance from the Seventeenth to the Twentieth Century (Brussels, Peter Lang
2008)
Bell, J., French Legal Cultures (London, Butterworths 2001)
——, ‘Comparing Public Law’ in Andrew Harding and Esin Örücü (eds), Comparative Law
in the 21st Century (London, Kluwer 2002)
——, Judiciaries within Europe: A Comparative Review (Cambridge, Cambridge University
Press 2006)
——, ‘Comparative Law in the Supreme Court 2010–11’ (2012) 1 Cambridge Journal of
International and Comparative Law 20
——, ‘The Argumentative Status of Foreign Legal Arguments’ (2012) 8 Utrecht Law
Review 8
—— and Engle, G., Cross Statutory Interpretation (3rd edn, London, Butterworths 1995)
Bentele, U., ‘Mining for Gold: The Constitutional Court of South Africa’s Experience with
Comparative Constitutional Law’ (2009) 37 Georgia Journal of International and
Comparative Law 219
Berenger, F., La motivation des des arrêts de la Cour de cassation (Aix en Provence, Presses
universitaires d’Aix-Marseilles 2003)
Berman, H.J., Law and Revolution: the Formation of the Western Legal Tradition (Cam-
bridge, Mass., Harvard University Press 1983)
Bernhardt, R., ‘Eigenheiten und Ziele der Rechtsvergleichung im öffentlichen Recht’
(1964) 24 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 431
——, ‘Betrachtungen zur Rechtsvergleichung im öffentlichen Recht’ in Reiner Grote (ed),
Die Ordnung der Freiheit: Festschrift für Christian Starck zum siebzigsten Geburtstag
(Tübingen, Mohr Siebeck 2007)
Bernstein, H., ‘Rechtsstile und Rechtshonoratioren: Ein Beitrag zur Metode der Rechtsver-
gleichung’ (1970) 34 Rabels Zeitschrift für ausländisches und internationales Privatrecht
443
Bézard, P., ‘Les magistrats français et le droit comparé’ (1994) 46 Revue internationale de
droit comparé 775
Bezemer, K., What Jacques Saw: Thirteenth Century France through the Eyes of Jacques de
Revigny, Professor of Law at Orleans (Frankfurt, Klostermann 1997)
Bingham, T., ‘ “There is a World Elsewhere”: The Changing Perspectives of English Law’
(1992) 41 International and Comparative Law Quarterly 513
——, The Rule of Law (London, Penguin 2010)
——, Widening Horizons: The Influence of Comparative Law and International Law on
Domestic Law (Cambridge, Cambridge University Press 2010)
Birks, P., ‘Adjudication and Interpretation in the Common Law: A Century of Change’ in
Basil Markesinis (ed), The Clifford Chance Lectures: Volume I (Oxford, Oxford University
Press 1996)
Blanc-Jouvan, X. (ed), L’avenir du droit comparé: un défi pour les juristes du nouveau
millénaire (Paris, Société de législation comparée 2000)
——, ‘L’influence du Code civil sur les codifications étrangères récentes’ in Le Code civil
1804–2004: Livre du Bicentenaire (Paris, Dalloz and LexisNexis Litec 2004)
Blom-Cooper, L. and others (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford
Bobek, M., ‘On the Application of European Law in (Not Only) the Courts of the New
Member States: “Don’t Do as I Say”?’ (2007–2008) 10 Cambridge Yearbook of Euro-
pean Legal Studies 1
——, ‘Quality or Quantity: Re-assessing the Role of Supreme Jurisdictions in Central
Europe’ (2009) 57 American Journal of Comparative Law 33
——, ‘The Administration of Courts in the Czech Republic—in Search of a Constitutional
Balance’ (2010) 16 European Public Law 251
290 Select Bibliography
——, ‘The Impact of The European Mandate of Ordinary Courts on the Position of
Constitutional Courts’ in Monica Claes and others (eds), Constitutional Conversations in
Europe (Cambridge, Intersentia 2012)
——, ‘Of Feasibility and Silent Elephants: The Legitimacy of the Court of Justice through
the eyes of National Courts’ in Maurice Adams and others (eds), Judging Europe’s Judges:
The Legitimacy of the Case Law of the European Court of Justice Examined (Oxford, Hart
2013)
—— and Kühn, Z., ‘Europe Yet to Come; The Application of EU Law in Slovakia’ in Adam
Łazowski (ed), The Application of EU Law in the New Member States: Brave New World
(The Hague, TMC Asser Press 2010)
——, and Kühn, Z., ‘What About That “Incoming Tide”? The Application of EU Law in
the Czech Republic’ in Adam Łazowski (ed), The Application of EU Law in the New
Member States: Brave New World (The Hague, TMC Asser Press 2010)
Boguszak, J., ‘K otázce tzv. srovnávací pravovědy’ (1962) 101 Právník 803
Boura, F., ‘K otázce výkladu zákonů’ (1949) 88 Právník 292
Braun, A., ‘Professors and Judges in Italy: It Takes Two to Tango’ (2006) 26 Oxford
Journal of Legal Studies 665
——, ‘Burying the Living? The Citation of Legal Writings in English Courts’ (2010) 58
American Journal of Comparative Law 27
Brenner, S.W., Precedent Inflation (New Brunswick, Transaction Publishers 1992)
Breyer, S., Active Liberty: Interpreting a Democratic Constitution (New York, Oxford Uni-
versity Press 2008)
Brunner, G. and Garlicki, L.L., Die Verfassungsgerichtsbarkeit in Polen (Baden-Baden,
Nomos 1999)
Burgorgue-Larsen, L., ‘De l’internationalisation du dialogue des juges’ in Le dialogue des
juges: Mélanges en l’honneur du président Bruno Genevois (Paris, Dalloz 2009)
Bydlinski, F., Juristische Methodenlehre und Rechtsbegriff (2nd edn, Vienna, Springer 1991)
Caenegem, R.C., Judges, Legislators and Professors: Chapters in European Legal History
(Cambridge, Cambridge University Press 1987)
Calabresi, G., ‘Two Functions of Formalism’ (2000) 67 University of Chicago Law Review
479
Calabresi, S.G., ‘ “A Shining City on a Hill”: American Exceptionalism and the Supreme
Court’s Practice of Relying on Foreign Law’ (2006) 86 Boston University Law Review
1335
—— (ed), Originalism: A Quarter-Century of Debate (Washington, Regnery 2007)
Canaris, C.W., Die Feststellung von Lücken im Gesetz (2nd edn, Berlin, Duncker &
Humblot 1983)
Cane, P. and Kritzer, H.M. (eds), The Oxford Handbook of Empirical Legal Research
(Oxford, Oxford University Press 2010)
Canivet, C. and others (eds), Comparative Law before the Courts (London, British Institute
of International and Comparative Law 2004)
Ćapeta, T., ‘Courts, Legal Culture and EU Enlargement’ (2005) 1 Croatian Yearbook of
European Law and Policy 23
Carbonnier, J., ‘Notes sur le notes d’ârrets’ (1970) Dalloz, Chronique 137
Cárdenas Paulsen, A.M., Über die Rechtsvergleichung in der Rechtsprechung des Bundesverfas-
sungsgerichts: Analyse der Heranziehung ausländischer Judikatur (Hamburg, Dr. Kovač
2009)
Charmont J. and Chausse, A., ‘Les interprètes du Code civil’ in Le Code civil 1804–1904:
Livre du centenaire (Paris, Artur Rousseau 1904)
Chodosch, H.E., ‘Comparing Comparisons: In Search of Methodology’ (1998–1999) 84
Iowa Law Review 1025
Choudhry, S. (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University
Press 2006)
Claes, M. and de Visser, M., ‘Are You Networked Yet? On Dialogues in European Judicial
Networks’ (2012) 8 Utrecht Law Review 100
Clark, D.S., ‘The Use of Comparative Law by American Court (I)’ (1994) 42 American
Journal of Comparative Law Supplement 23
Coing, H., Rechtsvergleichung als Grundlage von Gesetzgebung im 19. Jahrhundert (VII Ius
Commune: Veröffentlichungen des Max-Planck-Instituts für Europäische Re-
chtsgeschichte, Frankfurt, Klostermann 1978)
——, ‘Das juristische Vorlesungsprogramm der Universität Padua im XVII. und
XVIII. Jahrhundert’ in Helmut Coing, Gesammelte Aufsätze zu Rechtsgeschichte, Rechtsphi-
losophie und Zivilrecht: 1947–1975 (Frankfurt, Klostermann 1982)
——, ‘L’influence de la France sur le Droit Allemand’ in Helmut Coing, Gesammelte
Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: 1947–1975 (Frankfurt,
Klostermann 1982)
——, ‘Die ursprüngliche Einheit der europäischen Rechtswissenschaft’ in Helmut Coing,
Gesammelte Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: 1947–1975
(Frankfurt, Klostermann 1982)
——, ‘Savignys rechtspolitische und methodische Anschauungen in ihrer Bedeutung für
die gegenwärtige deutsche Rechtswissenschaft’ in Helmut Coing, Gesammelte Aufsätze zu
Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: 1947–1975 (Frankfurt, Klostermann
1982)
——, ‘Zur Geschichte des Begriffs “subjektives Recht” ’ in Helmut Coing, Gesammelte
Aufsätze zu Rechtsgeschichte, Rechtsphilosophie und Zivilrecht: 1947–1975 (Frankfurt,
Klostermann 1982)
Coleman, J. and Shapiro, S. (eds), The Oxford Handbook of Jurisprudence and Philosophy of
Law (Oxford, Oxford University Press 2002)
Constantinesco, L.J., Rechtsvergleichung: Band I (Cologne, Carl Heymanns 1971); Band II
(Cologne, Carl Heymanns 1972); Band III (Cologne, Carl Heymanns 1983)
Cooke, R., ‘The Road Ahead for the Common Law’ (2004) 53 International and Compara-
tive Law Quarterly 273
Cross, R. and Harris, J.W., Precedent in English Law (4th edn, Oxford, Clarendon Press
1991)
Daig, H.W., ‘Zu Rechtsvergleichung und Methodenlehre im Europäischen Gemeinschafts-
recht’ in Herbert Bernstein and others (eds), Festschrift für Konrad Zweigert zum 70.
Geburtstag (Tübingen, Mohr Siebeck 1981)
Damaška, M.R., The Faces of Justice and State Authority: A Comparative Approach to the Legal
Process (New Heaven, Yale University Press 1986)
David, R., French Law: Its Structure, Sources and Methodology (Baton Rouge, Louisiana State
—— and Jauffret-Spinosi, C., Les grands systèmes de droit contemporains (10th edn, Paris,
Dalloz 1992)
Dawson, J.P., The Oracles of the Law (Ann Arbor, The University of Michigan Law School
1968)
Devlin, ‘Judges and Lawmakers’ (1976) 39 Modern Law Review 1
Dölle, H., ‘Der Beitrag der Rechtsvergleichung zum deutschen Recht’ in Hundert Jahre
deutsches Rechtsleben: Festschrift zum Hundertjährigen Bestehen des Deutschen Juristentages:
Band II (Karlsruhe, CF Müller 1960)
——, ‘Rechtsdogmatik und Rechtsvergleichung’ (1970) 34 Rabels Zeitschrift für auslän-
disches und internationales Privatrecht 403
Drobnig, U., ‘The Comparability of Socialist and Non-Socialist Systems of Law’ (1977) 3
Tel Aviv University Studies in Law 45
——, ‘Rechtsvergleichung in der deutschen Rechtsprechung’ (1986) 50 Rabels Zeitschrift
für ausländisches und internationales Privatrecht 610
—— and Dopffel, P., ‘Die Nutzung der Rechtsvergleichung durch den deutschen Gesetz-
geber’ (1982) 46 Rabels Zeitschrift für ausländisches und internationales Privatrecht 253
—— and Van Erp, S. (eds), The Use of Comparative Law by Courts (The Hague, Kluwer
1999)
Dupré, C., Importing Law in Post-Communist Transitions: The Hungarian Constitutional
Court and the Right to Human Dignity (Oxford, Hart 2003)
Dutheillet de Lamothe, O., ‘Constitutional Court Judges’ Roundtable—Comparative
Constitutionalism in Practice’ (2005) 3 International Journal of Comparative Law 550
Duxbury, N., Jurists and Judges: An Essay on Influence (Oxford, Hart 2001)
——, The Nature and Authority of Precedent (Cambridge, Cambridge University Press
2008)
Edwards, H.T., ‘The Growing Disjunction between the Legal Education and the Legal
Profession’ (1992–1993) 91 Michigan Law Review 34
Ehrlich, E., Sociologie und Jurisprudenz (Czernowitz, Gutenberg 1906)
——, Freie Rechtsfindung und freie Rechtswissenschaft (Aalen, Scientia 1973)
Ely, J.H., Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass., Harvard
Engel, C. and Strack, F. (eds), The Impact of Court Procedure on the Psychology of Judicial
Decision Making (Baden-Baden, Nomos 2007)
Epstein, L. and King, G., ‘The Rules of Inference’ (2002) 69 University of Chicago Law
Review 1
Ewald, W., ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’ (1995) 43
Esser, J., Vorverständnis und Methodenwahl in der Rechtsfindung (Frankfurt, Athenäum
1970)
——, ‘Motivation und Begründung richterlicher Entscheidungen’ in Chaïm Perelman and
Paul Foriers (eds), La motivation des décisions de justice (Brussels, Bruylant 1978)
Fairgrieve, D. (ed), The Influence of the French Civil Code on the Common Law and Beyond
(London, British Institute of International and Comparative Law 2007)
Farber, D.A., ‘The Supreme Court, the Law of Nations, and Citation of Foreign Law: The
Lessons of History’ (2007) 95 California Law Review 1335
Febbrajo, A. and Sadurski, W. (eds), Central and Eastern Europe After Transition: Towards a
New Socio-legal Semantics (Burlington, Ashgate 2010)
Fenet, P.A., Naissance du Code civil: An VIII–an XII—1800–1804 (Paris, Flammarion
1989)
Fentiman, R.G., Foreign Law in English Courts (Oxford, Oxford University Press 1998)
Ferreres Comella, V., Constitutional Courts and Democratic Values: A European Perspective
(New Haven, Yale University Press 2009)
Feuerbach, P.J.A., Kleine Schriften vermischten Inhalts: Erste Abtheilung (Nuremburg, Verlag
von Theodor Otto 1833)
Finkentscher, W. and others (eds), Entstehung und Wandel rechtlicher Traditionen (Freiburg,
Alber Verlag 1980)
Flanagan, B. and Ahern, S., ‘Judicial Decision-Making and Transnational Law: A Survey of
Common Law Supreme Court Judges’ (2011) 60 International and Comparative Law
Quarterly 1
Fleischer, H., ‘Comparative Approaches to the Use of Legislative History in Statutory
Interpretation’ (2012) 60 American Journal of Comparative Law 401
Fletcher, G.P., ‘Comparative Law as a Subversive Discipline’ (1998) 46 American Journal of
Comparative Law 683
Frankenberg, G., ‘Critical Comparisons: Re-thinking Comparative Law’ (1985) 26 Harvard
International Law Journal 411
Fromont, M., La justice constitutionnelle dans le monde (Paris, Dalloz 1996)
Frowein, J.A., ‘Randbemerkung zu den Grenzen des Richterrechts in rechtsvergleichender
Betrachtung’ in Richterliche Rechtsfortbildung: Erscheinungsformen, Auftrag und Grenzen:
Festschrift der Juristischen Fakultät zur 600-Jahr-Feier der Ruprechts-Karls-Universität
Heidelberg (Heidelberg, CF Müller 1986)
Frydman, B., Le sens des lois: histoire de l’interprétation et de la raison juridique (3rd edn,
Brussels, Bryulant 2011)
Gamper, A., ‘On the Justiciability and Persuasiveness of Constitutional Comparison in
Constitutional Adjudication’ (2009) 3 International Constitutional Law Journal 150
Garapon, A. and Papadopoulos, I., Juger en Amérique et en France: culture juridique française
et common law (Paris, Odile Jacob 2003)
Gardner, J., ‘Concerning Permissive Sources and Gaps’ (1988) 8 Oxford Journal of Legal
Studies 457
Gaudemet, E., L’interprétation du Code civil en France depuis 1804 (Paris, La Mémoire du
Droit 2002)
Gaudemet, Y., Les méthodes du juge administratif (Paris, Librairie générale de droit et de
jurisprudence 1972)
Gellner, E., Nations and Nationalism (2nd edn, Oxford, Blackwell 2006)
Gelter, M. and Siems, M., ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis
of Cross-Citations between Ten of Europe’s Highest Courts’ (2012) 8 Utrecht Law
Review 88
Gény, F., Méthodes d’interprétation et sources en droit privé positif: Essai critique (2nd edn,
Paris, Librairie générale de droit et de jurisprudence 1919)
Giesen, I., ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’ (2012) 8
Utrecht Law Review 35
Gläser, M., Lehre und Rechtsprechung im französischen Zivilrecht des 19. Jahrhunderts
(Frankfurt, Klostermann 1996)
Gleick, J., Chaos: The Amazing Science of the Unpredictable (London, Vintage 1998)
Glenn, H.P., ‘Persuasive Authority’ (1986–1987) 32 McGill Law Journal 261
——, ‘A Transnational Concept of Law’ in Peter Cane and Mark Tushnet (eds), The
Oxford Handbook of Legal Studies (Oxford, Oxford University Press, 2003)
——, Legal Traditions of the World (4th edn, Oxford, Oxford University Press 2010)
Goff of Chieveley, ‘Comparative Law: the Challenge to the Judges’ in Basil Markesinis (ed),
Law Making, Law Finding and Law Shaping: The Divers Influences. The Clifford Chance
Lectures. Volume Two (Oxford, Oxford University Press 1997)
Goutal, JL, ‘Characteristics of Judicial Style in France, Britain and the USA’ (1976) 24
Grafton, A., The Footnote: A Curious History (Cambridge, Mass., Harvard University Press
1999)
Grawitz, M., Méthodes des sciences sociales (9th edn, Paris, Dalloz 1993)
Großfeld, B., ‘Vom Beitrag der Rechtsvergleichung zum deutschen Recht’ (1984) 184
Archiv für die civilistische Praxis 289
Grote, R., ‘Rechtskreise im öffentlichen Recht’ (2001) 126 Archiv des öffentlichen Rechts
10
Guillermet, C.J., La motivation des décisions de justice: La vertu pédagogique de la justice
(Paris, Harmattan 2006)
Guthrie, C., Rachlinski, J.J., and Wistrich, A.J., ‘Blinking on the Bench: How Judges
Decide Cases’ (2007–2008) 93 Cornell Law Review 1
Gutteridge, H.C., Comparative Law (2nd edn, Cambridge, Cambridge University Press
1949)
Häberle, P., Rechtsvergleichung im Kraftfeld des Verfassungsstaates (Berlin, Duncker und
Humblot 1992)
Habermas, J., Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demo-
kratischen Rechtsstaats (Frankfurt, Suhrkamp 1994)
Hall, N. (ed), The New Scientist Guide to Chaos (London, Penguin 1992)
Halmai, G., ‘The Transformation of Hungarian Constitutional Law from 1985 to 2005’ in
András Jakab and others (eds), The Transformation of the Hungarian Legal Order 1985–
2005 (Alphen aan den Rijn, Kluwer 2007)
Hart, H.L.A., The Concept of Law (2nd edn, Oxford, Clarendon Press 1994)
Hayne, K.M., ‘The High Court of Australia and the Supreme Court of the United
Kingdom: The Continued Evolution of Legal Relationships’ (2012) 1 Cambridge Journal
of International and Compartive Law 13
Heuschling, L., ‘Justice constitutionnelle et justice ordinaire: Épistémologie d’une distinc-
tion théorique’ in Constance Grewe and others (eds), La notion de ‘justice constitutionnelle’
(Paris, Dalloz 2005)
Hirsch, R., ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53
——, ‘On the Blurred Methodological Matrix of Comparative Constitutional Law’ in Sujit
Choudhry (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University
Press 2006)
Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62 Modern Law Review
159
——, ‘The Universality of Human Rights’ (2009) 125 Law Quarterly Review 416
Hoffmann-Riem, W., ‘Constitutional Court Judges’ Roundtable—Comparative Constitu-
tionalism in Practice’ (2005) 3 International Journal of Comparative Law 543
Holländer, P., Ústavněprávní argumentace (Prague, Linde 2003)
Huber, E.R., Deutsche Verfassungsgeschichte seit 1789 (Stuttgart, Kohlhammer 1970–1981)
Hug, W., ‘The History of Comparative Law’ (1931–1932) 45 Harvard Law Review 1027
Huls, N. and others (eds), The Legitimacy of Highest Courts’ Rulings (The Hague, TMC
Asser Press 2009)
Ignatieff, M. (ed), American Exceptionalism and Human Rights (Princeton, Princeton
Izdebski, H., ‘La jurisprudence de la Haute Cour administrative polonaise’ (1984) 36 Revue
internationale de droit comparé 471
Jackson, V.C., ‘Comparative Constitutional Federalism and Transnational Judicial Dis-
course’ (2004) 2 International Journal of Constitutional Law 91
——, Constitutional Engagement in a Transnational Era (Oxford, Oxford University Press
2010)
Jacquelot, F., ‘Le juge constitutionnel et le droit comparé’ [2007] Petites affiches 8
Jamieson, P., ‘Of Judges, Judgments and Legal Assistants’ (1998) 17 Civil Justice Quarterly
395
Jansen, N., ‘Comparative Law and Comparative Knowledge’ in Mathias Reimann and
Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford,
Oxford University Press 2006)
——, The Making of Legal Authority: Non-legislative Codifications in Historical and Com-
parative Perspective (Oxford, Oxford University Press 2010)
Jänterä-Jareborg, M., Foreign Law in National Courts: A Comparative Perspective (Leiden,
Nijhoff 2003)
Jellinek, G., System der subjektiven öffentlichen Rechte (2nd edn, Tübingen, Mohr Siebeck
1919)
Jestaz, P. and Jamin, C., La Doctrine (Paris, Dalloz 2004)
Joerges, C. and Ghaleigh, N.S. (eds), Darker Legacies of Law in Europe: The Shadow of
National Socialism and Fascism (Oxford, Hart 2003)
Jolowicz, J.A., ‘Les professions juridiques et le droit comparé: Angleterre’ (1994) 46 Revue
internationale de droit comparé 747
——, ‘The Role of the Supreme Court at the National and International Level’ in Pelayai
Yessiou-Faltsi (ed), The Role of the Supreme Courts at the National and International Level:
Reports for the Thessaloniki International Colloquium (Thessaloniki, Sakkoulas Publica-
tions 1998)
Kahn-Freund, O., ‘On Uses and Misuses of Comparative Law’ (1974) 37 Modern Law
Review 1
Kaiser, J.H., ‘Vergleichung im öffentlichen Recht’ (1964) 24 Zeitschrift für Ausländisches
Öffentliches Recht und Völkerrecht 391
Kau, M., United States Supreme Court and Bundesverfassungsgericht: Die Bedeutung des
United States Supreme Court für die Errichtung und Fortentwicklung des Bundesverfassungs-
gerichts (Berlin, Springer 2007)
Keith, K.J., ‘The Unity of the Common Law and the Ending of Appeals to the Privy
Council’ (2005) 54 International and Comparative Law Quarterly 197
Kelsen, H., Reine Rechtslehre (2nd edn, Vienna, Österreichische Staatsdruckerei 1992)
Kende, P., ‘L’optimisme institutionnel des elites postcommunistes’ in Yves Mény (ed), Les
politiques du mimétisme institutionnel: Le greffe et le rejet (Paris, Harmattan 1993)
Kiikeri, M., Comparative Legal Reasoning and European Law (Dordrecht, Kluwer 2001)
Kiralfy, A., ‘The Persuasive Authority of American Rulings in England’ (1948–1949) 23
Tulane Law Review 209
Kirby, M., ‘The Lords, Tom Bingham, and Australia’ in Mads Andenas and Duncan
Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum
Knapp, V., ‘Zákon stálého přibližování sovětskému příkladu’ (1953) XCII Právník 220
——, ‘Le droit comparé en Tchécoslovaquie’ in Livre du centenaire de la Société de législation
comparée: Évolution internationale et problèmes actuels du droit comparé (Paris, Imprimerie
Moderne 1969)
——, ‘Quelques problèmes méthodologiques dans la science du droit comparé’ in Konrad
Zweigert and HJ Puttfarken (eds), Rechtsvergleichung (Darmstadt, Wissenschaftliche
Buchgesellschaft 1978)
——, Teorie práva (Prague, CH Beck 1995)
——, Velké právní systémy: Úvod do srovnávací právní vědy (Prague, CH Beck 1996)
Knieper, R., ‘Möglichkeiten und Grenzen der Verpfanzbarkeit von Recht: Juristische
Zusammenarbeit aus der Sicht eines Beraters’ (2008) 72 Rabels Zeitschrift für auslän-
disches und internationales Privatrecht 88
Kohler, J., ‘Über die Interpretation von Gesetzen’ (1886) XIII Zeitschrift für das Privatrecht
und öffentliches Recht der Gegenwart 1
Komárek, J., ‘Precedent and Judicial Lawmaking in Supreme Courts: The Court of Justice
Compared to the US Supreme Court and the French Cour de Cassation’ (2008–2009)
11 Cambridge Yearbook of European Legal Studies 399
——, ‘Questioning Judicial Deliberations’ (2009) 29 Oxford Journal of Legal Studies 805
Komesar, NK, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public
Policy (Chicago, University of Chicago Press 1994)
Koopmans, T., ‘Comparative Law and the Courts’ (1996) 45 International and Compara-
tive Law Quarterly 545
Koskenniemi, M., ‘General Principles: Reflexions on Constructivist Thinking in Inter-
national Law’ in Martti Koskenniemi (ed), Sources of International Law (Aldershot,
Ashgate 2000)
Kötz, H., Die Begründung höchstrichterlicher Urteile (Deventer, Kluwer and Nederlandse
Verenigung voor Rechtsvergelijking 1982)
——, ‘Die Zitierpraxis der Gerichte: Eine vergleichende Skizze’ (1988) 52 Rabels Zeit-
schrift für ausländisches und internationales Privatrecht 644
——, ‘Der Bundesgerichtshof und die Rechtsvergleichung’ in Andreas Heldrich and
K.J. Hopt (eds), 50 Jahre Bundesgerichtshof: Band II (Munich, CH Beck 2000)
Krotoszynski, R.J., ‘I’d Like to Teach the World to Sing (in Perfect Harmony): Inter-
national Judicial Dialogue and the Muses—Reflections on the Perils and the Promise of
International Judicial Dialogue’ (2005–2006) 104 Michigan Law Review 1321
Krüger, H., ‘Eigenart, Methode und Funktion der Rechtsvergleichung im öffentlichen
Recht’ in Burkhardt Ziemske (ed), Staatsphilosophie und Rechtspolitik: Festschrift für
Martin Kriele zum 65. Geburtstag (Munich, CH Beck 1997)
Krynen, J., L’État de justice France, XIIIe–XXe siècle: L’idéologie de la magistrature ancienne
(Paris, Gallimard 2009)
——, L’Etat de justice France, XIIIe–XXe siècle. Tome II: L’emprise contemporaine des juges
(Paris, Gallimard 2012)
Krystufek, Z., ‘Komunistické právo v Československu’ in Michal Bobek and others (eds),
Komunistické právo v Československu—Kapitoly z dějin bezpráví (Brno, Masarykova uni-
verzita 2009)
Kuhn, T.S., The Structure of Scientific Revolutions (3rd edn, Chicago, The University of
Chicago Press 1996)
Kühn, Z., ‘Srovnávací metoda výkladu práva ve srovnávací perspektivě’ (2002) 141 Právník
1071
——, ‘Ještě jednou krátce k českému lustračnímu rozhodnutí’ (2003) 142 Právník 932
——, ‘Srovnávací právo v judikatuře středoevropských ústavních soudů’ (2003) 11 Časopis
pro právní vědu a praxi 108
——, ‘Worlds Apart: Western and Central European Judicial Culture at the Onset of the
European Enlargement’ (2004) 52 American Journal of Comparative Law 531
——, ‘The Application of European Law in the New Member States: Several (Early)
Predictions’ (2005) 3 German Law Journal 565
——, ‘Comparative Law in Central and Eastern Europe’ in Mathias Reimann and Reinhard
Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford Uni-
versity Press 2006)
——, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transform-
ation? (Boston, Martinus Nijhoff 2011)
Lallement, M. and Spurk, J. (eds), Stratégies de la comparaison internationale (Paris, Centre
national de la recherche scientifique 2003)
Lambert, H., ‘Transnational Judicial Dialogue, Harmonisation and the Common European
Asylum System’ (2009) 58 International and Comparative Law Quarterly 519
Larenz, K. and Canaris, C.W., Methodenlehre der Rechtswissenschaft (3rd edn, Berlin,
Springer 1995)
Lasser, M., Judicial Deliberations: A Comparative Analysis of Judicial Transparency and
Legitimacy (Oxford, Oxford University Press 2004)
——, ‘The European Pasteurization of French Law’ (2005) 90 Cornell Law Review 995
Latour, B., The Making of Law: An Ethnography of the Conseil d’État (Cambridge, Polity
2010)
Law, D.S. and Chang, W.C. ‘The Limits of Transnational Judicial Dialogue’ (2011) 86
Washington Law Review 523
Le Quinio, A., Recherche sur la circulation des solutions juridiques: le recours au droit comparé
par les juridictions constitutionnelles (Paris, Fondation Varenne 2011)
Lesaffer, R., European Legal History: A Cultural and Political Perspective (Cambridge,
Le Sueur, A. (ed), Building the UK’s New Supreme Court: National and Comparative
Perspectives (Oxford, Oxford University Press 2004)
Letourneur, M., ‘L’influence du droit comparé sur la jurisprudence du Conseil d’Etat
français’ in Livre du centenaire de la Société de législation comparée: Un siècle de droit
comparé en France (1869–1969) (Paris, Librairie générale de droit et de jurisprudence
1969)
Łetowska, E., ‘Multicentryczność współczesnego systemu prawa i jej konsekwencje’
Państwo i prawo, no 4/2005, 3
Lindholm, J., ‘The Viability of Constitutional/Non-constitutional Comparison’ in
A.B. Engelbrekt and Joakim Nergelius (eds), New Directions in Comparative Law (Chel-
tenham, Edward Elgar 2009)
Lindon, R., ‘La motivation des arrêts de la Cour de cassation’ [1975] La Semaine juridique
(I—Doctrine) 2681
Lorenz, E.N., The Essence of Chaos (London, University College Press 1993)
Luby, Š., Dejiny súkromného práva na Slovensku (Bratislava, Iura Edition 2002)
Luchterlandt, O. (ed), Verfassungsgerichtsbarkeit in Mittel- und Osteuropa: Teilband I:
Berichte (Baden-Baden, Nomos 2007)
Luhman, N., Legitimation durch Verfahren (2nd edn, Darmstadt, Luchterland 1975)
Lupoi, M., The Origins of the European Legal Order (Cambridge, Cambridge University
Press 2000)
MacCormick, N., Legal Reasoning and Legal Theory (Oxford, Clarendon Press 1978)
——, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford, Oxford University
Press 2005)
—— and Summers, R. (eds), Interpreting Statutes: A Comparative Study (Dartmouth,
Ashgate 1991)
—— and Summers, R. (eds), Interpreting Precedents: A Comparative Study (Dartmouth,
Ashgate 1997)
Mak, E., ‘Why Do Dutch and UK Judges Cite Foreign Law?’ (2011) 70 Cambridge Law
Journal 420
——, ‘Reference to Foreign Law in the Supreme Court of Britain and the Netherlands:
Explaining the Development of Judicial Practices’ (2012) 8 Utrecht Law Review 20
Malenovský, J., ‘Poznámka k jedné bizardní reflexi judikatury Ústavního soudu’ (2003) 142
Právník 184
Lord Mance, ‘Foreign and Comparative Law in the Courts’ (2001) 36 Texas International
Law Journal 415
Markesinis, B., Foreign Law and Comparative Methodology: A Subject and a Thesis (Oxford,
Hart 1997)
——, ‘Judicial Style and Judicial Reasoning in England and Germany’ (2000) 59 Cam-
bridge Law Journal 294
——, Always on the Same Path: Essays on Foreign Law and Comparative Methodology. Volume II
(Oxford, Hart 2001)
——, Comparative Law in the Courtroom and Classroom: The Story of the Last Thirty-Five
Years (Oxford, Hart 2003)
——, ‘Goethe, Bingham, and the Gift of an Open Mind: Weltliteratur and Global Lessons
from Goethe’ in Mads Andenas and Duncan Fairgrieve (eds), Tom Bingham and the
Transformation of the Law: A Liber Amicorum (Oxford, Oxford University Press 2009)
—— and Fedtke, J., Judicial Recourse to Foreign Law: A New Source of Inspiration? (London
and Abingdon, University College Press and Taylor & Francis Group 2006)
—— and Fedtke, J., Engaging with Foreign Law (Oxford, Hart 2009)
Martinico, G. and Pollicino, O. (eds), The National Judicial Treatment of the ECHR and EU
Laws (Groningen, Europa Law Publishing 2010)
Marty, G., ‘Les apports du droit comparé au droit civil’ in Livre du centenaire de la Société de
législation comparée: Un siècle de droit comparé en France (1869–1969) (Paris, Librairie
générale de droit et de jurisprudence 1969)
Matczak, M., Bencze, M., and Kühn, Z., ‘Constitutions, EU Law and Judicial Strategies in
the Czech Republic, Hungary and Poland’ (2010) 30 Journal of Public Policy 81
Mattei, U., Comparative Law and Economics (Ann Arbor, University of Michigan Press
1997)
McCrudden, C., ‘A Common Law of Human Rights? Transnational Judicial Conversations
on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499
McFadden, P.M., ‘Provincialism in United States Courts’ (1995–1996) 81 Cornell Law
Review 4
Meier-Hayoz, A., Der Richter als Gesetzgeber (Zürich, Juris 1951)
Melleray, F. (ed), ‘L’imitation de modèles étrangers en droit administratif français’ [2004]
L’actualité juridique droit administratif 1224
——, L’argument de droit comparé en droit administratif français (Brussels, Bruylant 2007)
——, ‘L’utilisation du droit étranger par le Conseil d’Etat statuant au contentieux’ in Le
dialogue des juges: Mélanges en l’honneur du président Bruno Genevois (Paris, Dalloz 2009)
Melzer, F., Metodologie nalézání práva: úvod do právní argumentace (Prague, CH Beck 2010)
Mény, Y. (ed), Les politiques du mimétisme institutionnel: Le greffe et le rejet (Paris, Harmattan
1993)
Merryman, J.H., ‘The French Deviation’ (1996) 44 American Journal of Comparative Law
109
——, The Loneliness of the Comparative Lawyer (The Hague, Kluwer 1999)
Messite, P.J., ‘Citing Foreign Law in U.S. Courts: Is Our Sovereignty Really at Stake?’
(2005–2006) 35 Baltimore University Law Review 171
Meynial, E., ‘Les Recueils d’arrêts et les Arrêtistes’ in Le Code civil 1804–1904: Livre du
centenaire (Paris, Artur Rousseau 1904)
Mialot, C., ‘L’utilisation du droit compare par le Conseil d’Etat, un changement dans la
fabrique du droit’ [2010] Actualité juridique - droit administratif 1462
Miersch, M. Der sogenannte référé législatif (Baden-Baden, Nomos 1999)
Mimin, P., Le style des jugements (4th edn, Paris, Librairies techniques 1978)
Mohnhaupt, H., Historische Vergleichung im Bereich von Staat und Recht: Gesammelte
Aufsätze (Frankfurt, Klostermann 2000)
Möllers, C., ‘Netzwerk als Kategorie des Organisationsrechts: Zur juristischen Beschreibung
dezentraler Steuerung’ in Janbernd Oebbecke (ed), Nicht-normative Steuerung in dezen-
tralen Systemen (Stuttgart, Franz Steiner 2005)
Monateri, P.G., (ed), Methods of Comparative Law (Cheltenham, Edward Elgar 2012)
Montazel, L., Entre faits et droit: histoire d’un pouvoir judiciaire. Les techniques de la cassation
civile en France et en Allemagne au XIXème siècle (Frankfurt, Klostermann 1998)
Montesquieu, Charles-Louis de Secondat, baron de La Brède, De l’esprit des lois I (Paris,
Garnier-Flammarion 1979)
Morawa, A.H.E., ‘Global Constitutional Interaction—a Question of Methodology?’
Schweizerische Zeitschrift für internationals und europäisches Recht No 4/2008, 321
Morawski, L., Zasady wykładni prawa (Toruń, TNOiK 2006)
Moréteau, O., ‘Ne tirez pas sur le comparatiste’ (2005) 7 Recueil Dalloz 452
Mössner, J.M., ‘Rechtsvergleichung und Verfassungsrechtsprechung’ (1974) 99 Archiv des
öffentlichen Rechts 193
Muir-Watt, H., ‘La fonction subversive du droit comparé’ (2000) 52 Revue internationale
de droit comparé 503
Munday, R., ‘Over-Citation: Stemming the Tide’ (2002) 166 Justice of the Peace 6 (part
one); (2002) Justice of the Peace 29 (part two); (2002) 166 Justice of the Peace 83 (part
three)
——, ‘Reasoning without Dissent: Dissenting without Reason’ (2004) 168 Justice of the
Peace 968
——, ‘Of Law Clerks and Judicial Assistants’ (2007) 171 Justice of the Peace 455
Musson, A. and Stebbings, C. (eds), Making Legal History (Cambridge, Cambridge Univer-
sity Press 2012)
Ost, F., Dire le droit, faire justice (Brussels, Bruylant 2007)
—— and van de Kerchove, M., Entrée la lettre et l’esprit: Les directives d’interprétation en droit
(Brussels, Bruylant 1989)
Örücü, E. and Nelken, D. (eds), Comparative Law: A Handbook (Oxford, Hart 2007)
yen, E. (ed), Comparative Methodology: Theory and Practice in International Social Research
(London, SAGE 1990)
Peczenik, A., On Law and Reason (2nd edn, Berlin, Springer 2009)
Pegoraro, L., La Corte constituzionale italiana e il diritto comparato: Un’analisi comparatistica
(Bologna, Clueb 2006)
Perelman, C. (ed), Le problème des lacunes en droit (Brussels, Bruylant 1968)
—— and Foriers, P. (eds), La motivation des décisions de justice (Brussels, Bruylant 1978)
Pescatore, P., ‘Le recours, dans la jurisprudence de la Cour de justice des Communautés
européennes, à des normes déduites de la comparaison des droits des Etats members’
(1980) 32 Revue internationale de droit comparé 337
——, Introduction à la science du droit (Luxembourg, Université de Luxembourg 2009)
Pfersmann, O., ‘Le droit comparé comme interprétation et comme théorie du droit’ (2001)
53 Revue internationale de droit comparé 275
Piana, D. and Guarnieri, C., ‘Bringing the Outside Inside: Macro and Micro Factors to Put
the Dialogue amongst Highest Courts in its Right Context’ (2012) 8 Utrecht Law
Review 139
Pieroth, B., ‘Amerikanischer Verfassungsexport nach Deutschland’ [1989] Neue Juristische
Wochenschrift 1333
Ponthoreau, M.C., ‘Le recours à «l’argument de droit comparé» par le juge constitutionnel:
Quelques problèmes théorique et techniques’ in Ferdinand Mélin-Soucramanien (ed),
L’interprétation constitutionnelle (Paris, Dalloz 2005)
——, ‘L’argument fondé sur la compaison dans le raisonnement juridique’ in Pierre
Legrand (ed), Comparer les droits, résolument (Paris, Presses universitaires de France 2009)
Popper, K., The Logic of Scientific Discovery (London, Routledge 2002)
Posner, R.A., ‘The Present Situation in Legal Scholarship’ (1980–1981) 90 Yale Law
Journal 1113
——, ‘Judicial Biography’ (1995) 70 New York University Law Review 502
——, How Judges Think (Cambridge, Mass., Harvard University Press 2008)
Pospíšil, I. and Wagnerová. E. (eds), Vladimír Klokočka Liber Amicorum: In memoriam
emeritního soudce Ústavního soudu (Prague, Linde 2009)
Pound, R., ‘Foreword to the “Valuation of Property in Roman Law” ’ (1920–1921) 34
Harvard Law Review 227
Přibáň, J., ‘Na stráži jednoty světa: marxismus a právní teorie’ in Michal Bobek and others
(eds), Komunistické právo v Československu: Kapitoly z dějin bezpráví (Brno, Masarykova
univerzita 2009)
Procházka, R., Mission Accomplished: On Founding Constitutional Adjudication in Central
Europe (Budapest, Central European University Press 2002)
Prusák, J. and others, Sociologicko-právny výskum prameňov práva a justifikácia súdnych
rozhodnutí (2007) IV Acta Universitatis Tyrnaviensis Iuridica 110
Rabel, E., ‘Aufgabe und Notwendigkeit der Rechtsvergleichung’ in Ernst Rabel Gesammelte
Aufsätze: Band III (Tübingen, Mohr Siebeck 1967)
——, ‘Das Institut für Rechtsvergleichung an der Universität München’ in Ernst Rabel
Gesammelte Aufsätze: Band III (Tübingen, Mohr Siebeck 1967)
Radbruch, G., ‘Gesetzliches Unrecht und übergesetzliches Recht’ (1946) 1 Süddeutsche
Juristenzeitung 105
——, Rechtsphilosophie (8th edn, Stuttgart, KF Koehler 1973)
Raz, J., Practical Reason and Norms (Oxford, Oxford University Press 1999)
Rehm, GM, ‘Rechtstransplantate als Instrument der Rechtsreform und –transformation’
(2008) 72 Rabels Zeitschrift für ausländisches und internationales Privatrecht 1
Rehnquist, W., ‘Constitutional Courts-Comparative Remarks’ in P. Kirchhof and
D.P. Kommers (eds), Germany and its Basic Law: Past, Present and Future—A German-
American Symposium (Baden-Baden, Nomos 1993)
Reimann, M. (ed), The Reception of Continental Ideas in the Common Law World: 1820–
1920 (Berlin, Duncker und Humblot 1993)
——, Historische Schule and Common Law: Die deutsche Rechtswissenschaft des 19. Jahrhun-
derts im amerikanischen Rechtsdenken (Berlin, Duncker und Humblot 1993)
——, ‘Stepping Out of the European Shadow: Why Comparative Law in the United States
Must Develop Its Own Agenda’ (1998) 46 American Journal of Comparative Law 637
——, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth
Century’ (2002) 50 American Journal of Comparative Law 671
——, and Zimmermann, R. (eds), The Oxford Handbook of Comparative Law (Oxford,
Oxford University Press 2006)
Reinhart, G., ‘Rechtsvergleichung und richterliche Rechtsfortbildung auf dem Gebiet des
Privatsrecht’ in Richterliche Rechtsfortbildung: Erscheinungsformen, Auftrag und Grenzen:
Festschrift der Juristischen Fakultät zur 600-Jahr-Feier der Ruprechts-Karls-Universität
Heidelberg (Heidelberg, CF Müller 1986)
Rheinstein, M., ‘Die Rechtshonoratioren und ihr Einfluss auf Charakter und Funktion der
Rechtsordnungen’ (1970) 34 Rabels Zeitschrift für ausländisches und internationales
Privatrecht 1
——, Einführung in die Rechtsvergleichung (Munich, CH Beck 1974)
Rials, S., Le juge administratif français et la technique du standard: essai sur le traitement
jurisdictionnel de l’idée de normalité (Paris, Librairie générale de droit et de jurisprudence
1980)
Riles, A. (ed), Rethinking the Masters of Comparative Law (Oxford, Hart 2001)
Rivero, J., ‘Les phénomènes d’imitation des modèles étrangers en droit administrative’ in
Miscellanea W. J. Ganshof van der Meersch: Tome troisième (Brussels, Bruylant 1972)
——, ‘Droit administratif français et droits administratifs étrangers’ in Livre du centenaire de
la Société de législation comparée: Un siècle de droit comparé en France (1869–1969) (Paris,
Librairie générale de droit et de jurisprudence 1969)
Rodin, S., ‘Discourse and Authority in European and Post-Communist Legal Culture’
(2005) 1 Croatian Yearbook of European Law and Policy 1
Rolland, M., ‘La magistrature française devant le droit comparé’ in Livre du centenaire de la
Société de législation comparée: Un siècle de droit comparé en France (1869–1969) (Paris,
Librairie générale de droit et de jurisprudence 1969)
Romano, S., L’Ordre juridique (Paris, Dalloz 1975)
Rosenfeld, M. and Sajó, A. (eds), The Oxford Handbook of Comparative Constitutional Law
Rüthers, B., Die unbegrenzte Auslegung: Zum Wandel der Privatrechtsordnung im National-
sozialismus (Thübingen, Mohr Siebeck 1968)
Sacco, R., ‘Legal Formants: A Dynamic Approach to Comparative Law’ (1991) 39 Ameri-
can Journal of Comparative Law 1 (part I) and 343 (part II)
Sadurski, W. (ed), Constitutional Justice, East and West (The Hague, Kluwer 2002)
——, Rights before Courts: A Study of Constitutional Courts in post-Communist States of
Central and Eastern Europe (Dordrecht, Springer 2005)
Sajó, A., ‘The Development of Freedom of Expression after 1989’ in Vanda Lamm (ed),
Transformation in Hungarian Law (1989–2006): Selected Studies (Budapest, Akadémiai
Kiadó 2007)
Saleilles, R., ‘École historique et droit naturel’ (1902) I Revue trimestrielle de droit civil 5
——, ‘Le Code civil et la méthode historique’ in Le Code civil 1804–1904: Livre du
centenaire (Paris, Artur Rousseau 1904)
——, ‘La fonction juridique du droit comparé’ in Fritz Berolzheimer (ed), Juristische
Festgabe des Auslandes zu Josef Kohlers 60. Geburtstag (Stuttgart, F. Enke 1909)
Samuels, A., ‘Those Multiple Long Judgments’ (2005) 24 Civil Justice Quarterly 279
Sauvel, T., ‘Les origines des commissaires du gouvernement auprès du Conseil d’Etat
statuant au contentieux’ (1949) 55 Revue de droit public et de la science politique en
France et à l’étranger 4
——, ‘Histoire du jugement motivé’ (1955) 61 Revue du droit public et de la science
politique en France et a l’étranger 5
Savigny, F.C., System des heutigen Römischen Rechts. 2. Neudruck der Ausgabe Berlin 1840
(Aalen, Scientia Verlag 1981)
Scalia, A., ‘Commentary’ (1995–1996) 40 St Louis University Law Journal 1119
——, A Matter of Interpretation: Federal Court and the Law (Princeton, Princeton Univer-
sity Press 1997)
Schauer, F., ‘Authority and Authorities’ (2008) 94 Virginia Law Review 1931
——, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Mass.,
Harvard University Press 2009)
Schiemann, K., ‘Aktuelle Einflüsse des deutschen Rechts auf die richterliche Fortbildung
des englischen Rechts’ [2003] Europarecht 17
Schnur, R., Einflüsse des deutschen und des österreichischen Rechts in Polen (Berlin, de Gruyter
1985)
Schulze, R., ‘Vergleichende Gesetzesauslegung und Rechtsangleichung’ (1997) 38 Zeit-
schrift für Rechtsvergleichung 183
Schwartz, H., The Struggle for Constitutional Justice in Post-Communist Europe (Chicago,
The University of Chicago Press 2000)
Schwarze, J., Droit administratif européen (Brussels, Office des publications officielles des
CE, Bruylant 1994)
Sedley, S., ‘Constitutional Court Judges’ Roundtable—Comparative Constitutionalism in
Practice’ (2005) 3 International Journal of Comparative Law 569
Seipp, D.J., ‘Our Law, Their Law, History and the Citation of Foreign Law’ (2006) 86
Boston University Law Review 1417
Siehr, K., ‘Die Zeitschrift für Schweizerisches Recht und das schweizerische Privatrecht in
der deutschen Rechtspraxis’ (1981) 100 Zeitschrift für Schweizerisches Recht 51
Siems, M.M., ‘The End of Comparative Law’ (2007) 2 (2) Journal of Comparative Law 133
—— ‘Citation Patterns of the German Federal Supreme Court and the Court of Appeal of
England and Wales’ (2010) 21 King’s Law Journal 152
——, ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations
between Ten of Europe’s Highest Courts’ (2012) 8 Utrecht Law Review 88
Siltala, R., A Theory of Precedent (Oxford, Hart 2000)
Slaughter, A.M, ‘A Typology of Transjudicial Communication’ (1994–1995) 29 University
of Richmond Law Review 99
——, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191
——, A New World Order (Princeton, Princeton University Press 2004)
Smelser, N.J., Comparative Methods in the Social Sciences (London, Prentice-Hall 1976)
Smithey, S.I., ‘A Tool, Not a Master: The Use of Foreign Case Law in Canada and South
Africa’ (2001) 34 Comparative Political Studies 1188
Sólyom, L., ‘Anmerkungen zur Rezeption auf dem Gebiet der wirtschaftlichen und sozialen
Rechte aus ungarischer Sicht’ in J.A. Frowein and Thilo Marauhn (eds), Grundfragen der
Verfassungsgerichtsbarkeit in Mittel- und Osteuropa (Berlin, Springer 1998)
——, ‘The Role of Constitutional Courts in the Transition to Democracy: With Special
Reference to Hungary’ (2003) 18 International Sociology 133
—— and Brunner, G., Constitutional Judiciary in a New Democracy: The Hungarian Consti-
tutional Court (Ann Arbor, The University of Michigan Press 1999)
Stapleton, J., ‘Benefits of Comparative Tort Reasoning’ in Mads Andenas and Duncan
Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum
Starck, C., ‘Rechtsvergleichung im öffentlichen Recht’ (1997) 52 Juristen Zeitung 1021
—— and Weber, A. (eds), Verfassungsgerichtsbarkeit in Westeuropa: Teilband I: Berichte
(Baden-Baden, Nomos 1986)
Stein, E., Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Break-up (Ann
Arbor, University of Michigan Press 1997)
Steinberger, H., 200 Jahre amerikanische Bundesverfassung: Zu Einflüssen des amerikanischen
Verfassungsrechts auf die deutsche Verfassungsentwicklung (Berlin, de Gruyter 1987)
Steiner, E., French Legal Method (Oxford, Oxford University Press 2002)
Štiavnický, J., ‘Princíp subsidiarity v českej a slovenskej súdnej moci’ in Vít Hloušek and
Vojtěch Šimíček (eds), Dělba soudní moci v České republice (Brno, Mezinárodní politolo-
gický ústav 2004)
Stolleis, M., The Law under the Swastika: Studies on Legal History in Nazi Germany
(Chicago, The University of Chicago Press 1998)
——, Nationalität und Internationalität: Rechtsvergleichung im öffentlichen Recht des 19.
Jahrhunderts (Stuttgart, Steiner 1998)
Stone Sweet, A., Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford
—— and Keller, H. (eds), A Europe of Rights: The Impact of the ECHR on National Legal
Systems (Oxford, Oxford University Press 2008)
Strauch, D., ‘Zur Rechtsfortbildung im mitteralterlichen Schweden’ in Gerhard Köbler
(ed), Wege europäischer Rechtsgeschichte (Frankfurt, Peter Lang 1987)
Strebel, H., ‘Vergleichung und vergleichende Methode im öffentlichen Recht’ (1964) 24
Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 405
Summer, R.S., ‘Two Types of Substantive Reasons: the Core of a Theory of Common-Law
Justification’ (1977–1978) 63 Cornell Law Review 707
Sunstein, C., One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge,
Mass., Harvard University Press 1999)
Szabó, I. and Péteri, Z. (eds), A Socialist Approach to Comparative Law (Budapest, Sijthoff
1977)
Tamanaha, B.Z., ‘Balanced Realism on Judging’ (2009–2010) 44 Valparaiso University
Law Review 1243
Teitel, R.G., Transitional Justice (Oxford, Oxford University Press 2000)
Teubner, G., ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in
New Diferencies’ (1998) 61 Modern Law Review 11
Touffait, A. and Tunc, A., ‘Pour une motivation plus explicite des décisions de justice
notamment de celles de la Cour de cassation’ (1974) 72 Revue trimestrielle de droit civil
487
Tschentscher, A., ‘Dialektische Rechtsvergleichung—Zur Methode der Komparatistik im
öffentlichen Recht’ Juristenzeitung No 17/2007, 807
Tsen-Ta Lee, J., ‘Interpreting Bills of Rights: The Value of a Comparative Approach’ (2007)
5 International Journal of Constitutional Law 122
Tunc, A., ‘La méthode du droit civil: Analyse des conceptions françaises’ (1975) 27 Revue
internationale du droit comparé 817
Tuori, K., Ratio and Voluntas: The Tension between Reason and Will in Law (Farnham,
Ashgate 2011)
Tushnet, M., ‘The Emerging Transnational Constitution’ (2003) 37 Loyola of Los Angeles
Law Review 239
——, ‘Referring to Foreign Law in Constitutional Interpretation: An Episode in Culture
Wars’ (2005–2006) 35 University of Baltimore Law Review 299
Twining, WL, Globalisation and Legal Theory (London, Butterworths 2000)
——, ‘Diffusion and Globalisation Discourse’ (2006) 47 Harvard International Law
Journal 507
—— and others, ‘The Role of Academics in the Legal System’ in Peter Cane and Mark
Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, Oxford University Press
2003)
Uerpmann, R., Die Europäische Menschenrechtskonvention und die deutsche Rechtsprechung:
Ein Beitrag zum Thema Völkerrecht und Landesrecht (Berlin, Duncker und Humblot
1993)
Ulč, O., Malá doznání okresního soudce (Toronto, 68 Publishers 1974)
Uyterhoeven, H., Richterliche Rechtsfindung und Rechtsvergleichung: Eine Vorstudie über die
Rechtsvergleichung als Hilfsmittel der richterlichen Rechtsfindung im Privatrecht (Bern,
Stämpfli 1959)
Vallier, I., (ed), Comparative Methods in Sociology: Essays on Trends and Applications (Berke-
ley, University of California Press 1971)
van Gerven, W., ‘Politics, Ethics & the Law, Legal Practice & Scholarship’ LSE Law
Working Paper 19/2008
Varga, C., Transition to Rule of Law: On the Democratic Transformation in Hungary
(Budapest, Loránd Eötvös University 1995)
Vedel, G., ‘Souveraineté et supraconstitutionalité’ (1993) 67 Pouvoirs 79
Verdussen, M., (ed), La justice constitutionnelle en Europe centrale (Brussels, Bruylant 1997)
Vogenauer, S., Die Auslegung von Gesetzen in England und auf dem Kontinent (Tübingen,
Mohr Siebeck 2001)
——, ‘An Empire of Light? Learning and Lawmaking in the History of German Law’
(2005) 64 Cambridge Law Journal 481
——, ‘An Empire of Light? II: Learning and Lawmaking in Germany Today’ (2006) 26
Oxford Journal of Legal Studies 627
——, ‘Statutory Interpretation’ in J.M. Smits (ed), Elgar Encyclopedia of Comparative Law
(Cheltenham, Edward Elgar 2006)
Waldron, J., ‘Partly Laws Common to All Mankind’: Foreign Law in American Courts (New
Heaven, Yale University Press 2012)
Walsh, D.J., ‘On the Meaning and Pattern of Legal Citation: Evidence from State Wrongful
Discharge Precedent Cases’ (1997) 31 Law and Society Review 337
Watson, A., Legal Transplants: An Approach to Comparative Law (2nd edn, Athens, The
University of Georgia Press 1993)
——, ‘Aspects of Reception of Law’ (1996) 44 American Journal of Comparative Law 335
Weber, M., Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (5th edn,
Tübingen, Mohr Siebeck 1980)
Weinrib, L.E., ‘Constitutional Conceptions and Constitutional Comparativism’ in VC
Jackson and Mark Tushnet (eds), Defining the Field of Comparative Constitutional Law
(Westport, Praeger 2002)
——, ‘The Postwar Paradigm and American Exceptionalism’ in Sujit Choudry (ed), The
Migration of Constitutional Ideas (Cambridge, Cambridge University Press 2006)
Lord Woolf (edited by Christopher Campbell-Holt), The Pursuit of Justice (Oxford, Oxford
Wróblewski, J., The Judicial Application of Law (Dordrecht, Kluwer 1992)
——, ‘Motivation de la decision judiciaire’ in Chaïm Perelman and Paul Foriers (eds), La
motivation des décisions de justice (Brussels, Bruylant 1978)
Zajtay, I., The Application of Foreign Law: International Encyclopaedia of Comparative Law
III-14 (Tübingen, Mohr Siebeck 1972)
——, ‘Réflexions sur l’évolution du droit comparé’ in Herbert Bernstein and others (eds),
Festschrift für Konrad Zweigert zum 70. Geburtstag (Tübingen, Mohr Siebeck 1981)
Zaring, D., ‘The Use of Foreign Decisions by Federal Courts: An Empirical Analysis’ (2006)
3 Journal of Empirical Legal Studies 297
Zeiliński, M., Wykładnia prawa: Zasdy, reguły, wskazówki (Warsawa, LexisNexis 2006)
Zeno-Zencovich, V., ‘Il contributo storico-comparatistico nella guirisprudenza della Corte
constituzionale italiana: una ricerca sul nulla?’ [2005] Diritto publicco comparato ed
Europeo 1993
Ziller, J., ‘Public Law’ in JM Smits (ed), The Elgar Encyclopedia of Comparative Law
(Cheltenham, Edward Elgar 2006)
Zimmermann, R., Roman Law, Contemporary Law, European Law: The Civilian Tradition
Today (Oxford, Oxford University Press 2001)
——, Die Europäisierung des Privatrechts und die Rechtsvergleichung (Berlin, De Gruyter
2006)
Zippelius, R., Juristische Methodenlehre (4th edn, Munich, CH Beck 1985)
Zuckerman, A.A.S. (ed), Civil Justice in Crisis: Comparative Perspectives of Civil Procedure
Zweigert, K., ‘Rechtsvergleichung als universale Interpretationsmethode’ (1949) 15 Zeit-
schrift für Ausländisches und Internationales Privatrecht 5
—— and Kötz, H., Einführung in die Rechtsvergleichung (3rd edn, Tübingen, Mohr Siebeck
1996)
—— and Puttfarken, H.J. (eds), Rechtsvergleichung (Darmstadt, Wissenschaftliche Buchge-
sellschaft 1978)
Index
actio popularis 183, 266 on the Continent 216

Alkotmánybíróság 256, 257, 263 chaos
Allgemeines Landrecht für die Preußischen theory of 249–51
Staaten 125, 128, 226 cherry-picking see comparison, selectivity
amicus curiae 52–3 citation
analogy absence of 42
internal 44, 125, 132, 206 block 136, 149, 156
in law 77, 212 cluster 73, 166
within a statute 128 inflation 80
approximation of law 160, 170, 259 and influence 225–7
argument of legal scholarship 52
additional 216 opportunism 84
controlling 215 prohibition of 13, 43, 72, 274
defendable 217 rules on 38, 77–8
free-standing 216 string 235
persuasive 33, 77–9, 188, 212–15, 243–4 Code civil
selective 217–18, 244 of Canton Neuenburg 13, 226
subsidiary 213, 215–16 of Canton Waadt 226
ârretiste 111 French 98, 100–1, 117, 207, 273
assistant livre préliminaire 100
legal/judicial 46–7, 57 Swiss 211, 273
référendaire 38, 46 comity
Ausstrahlungswirking see effect, radiation within common law 30, 92
Australia 30, 85–6, 91–3, 95, 197 federal 32
Austria 40, 42, 144–5, 159, 166, 169, 187, judicial 30
230–2, 255 commissaire du gouvernement 109
authority Common law
abundance of 42–44, 79 British Commonwealth 30, 88, 95–6
binding 77–9, 154–6, 184, 213–15, 244–5 character of 76
content-based 244 comity within 30, 92
optional 79, 214, 244 unity of 91
persuasive 28, 33, 77–9, 213–15 Common Market see European Union
in Continental systems 163, 184, 214 Communism
rational 220–2, 243–4, 247–8 classless society 168
religious 220–2, 243, 271 differentiation within the Eastern bloc
selective 217, 240 171–2
source-based 244 interpretation 261–3
avocat général 108–9, 118 socialist legal science 168–72
Stalinist period 261–3
Begriffjurisprudenz 129, 205 comparability
Belgium 42, 112, 259 absence of 274
Bingham, Tom 81–2 and politics 40
biographies 55–7 between private and public law 59–61
Bundesgerichtshof 14, 120, 144–7, 159 between systems 40, 170
Bundestreue see comity, federal comparison
Bundesverfassungsgericht 25, 55, 61, 120, 126, constitutional 14, 60–4, 126
140–4, 159, 166, 180, 255, 266–7 controlled 241
Bundesverwaltungsgericht 120, 147–8 diachronic 14, 116
function 16, 245–7
Canada 30, 85–7, 91, 95–6 legitimacy 237–40
case law and liberalization 53, 116, 277
in common law 77–8, 216 methodology 34–5, 240–5, 278
308 Index
comparison (cont.) within the law 208
non-use 252–5, 273 transparency in 98–9, 225, 233–4
over-use 252–5, 269 discourse
patterns of influence 38, 68, 95, 197, 249, authoritarian 232
283–4 bifurcation of 98, 107, 231
political dimension of 40–1, 170, 252–4, 272 of human rights 61, 209, 267
private law 57–60 internal 73, 107, 116, 118, 193, 222, 231
public law 57–60 legal 62, 127, 233, 260, 264, 267, 277
selectivity 240 political 62, 264, 277
tertium comparationis 34 dissenting opinions 37, 143, 160, 177–8, 235
complaint Drittwirkung see effect, horizontal
constitutional 121, 157, 178, 183, 266
conflict of laws see international law, private ECHR 27, 34, 47, 194–5
Conseil constitutionnel 38, 106, 110, effect
114–16, 229 butterfly 250
Conseil d’Etat 55, 99, 111–13, 141, 147 horizontal 60–1
constitutionality radiation 60
la question prioritaire 115 Ehrlich, Eugen 130–1, 205
review of 115, 121, 157, 160, 178, 256 England 15, 46, 70, 75–96, 197, 203,
supra-constitutionality 107 225, 273
continuity EU law 25–7, 47
in law 42–3 CILFIT criteria 33
personal 258 direct effect 26–7, 209
and revolutions 261–2 disregard of 240
in values 260–3 intra Member States references 32–3
contra legem see decision-making, against the law preliminary rulings 33, 238, 284
cooperation primacy of 26–7, 209, 239
between courts 73, 238–9 role of national courts 194–5
within federations 32 scholarship 279
in judicial matters 23, 238 scope of application 26–7, 59
Council for Mutual Economic Assistance 170 European Union
Cour de cassation 38, 110, 113–14, 231 accession to 160, 163, 165–6, 189
Court of Appeal 45, 47, 55, 81, 85–6, 89 law of see EU law
courts exegesis 100–1, 129, 198, 277, 286
analytical departments within 46–7 extradition 22–3, 35, 48, 87
constitutional
composition 172, 184, 268 federation
mutation 265–8 cooperation 32
purpose 61, 63, 172, 259, 263 intra-federal comity 32, 92
as foreign actors 237–8 split 174, 182
international associations of 48, 148 footnote
lower 44–5, 172, 267 dissent with respect to 235
supreme 44–5, 67–8, 114, 192, 263–7 nature of 247
Czech Republic 42, 45, 58, 60, 153–73, 226, foreign law
254, 263 and comparison 34–5
use in national courts
decision advisable 20, 28–33, 41, 86, 91,
complexity of 235 96, 166
discovery 196, 222–3, 228–9 mandatory 20, 21–7
judicial non-mandatory 20, 33–4
access to 235 voluntary 20, 33–4
duty to state reasons 98, 220 France 12, 40, 42, 45, 60, 70, 79, 97–119,
length 62, 146, 163, 181, 235 197–8, 225–8, 231, 259, 274
style 38, 97, 102, 149, 189, 190, 224, Freirechtsschule see law, free
232, 280
written 220–2 gap
representation 196, 222–5, 233, 246, 255 closing of 31, 105, 124, 140
understandability of 108, 234–5 existence of 43, 101, 105, 107, 206
decision-making in a constitution 107
intuitive 169, 223 in law 101, 132, 206–7, 212
against the law 208 in statute 105, 124, 132, 206
Index 309
general principles iura novit curia 46
of EU law 160 ius commune 10, 12, 226
of law 30–1, 105, 132, 180, 215
recognized amongst civilized nations 24, 31 judges
Gény, François 101–3, 118, 205 ideology 39, 204–5, 218, 273
Germany 14, 40, 42, 45, 52, 60, 70, 112, interviews with 71–2, 84
120–51, 166, 181, 198, 205, 226, 258, as legislators 210–12
261, 274 self-portraits of 72, 84, 261
influence on Central Europe 166, 181, judicialization 17, 209
255–6, 270–1 Junius 273
globalization 14 justice
denial of 207
history
of comparative law 10–13 Kelsen, Hans 159, 209
legislative 78, 133–4
Hoffmann, Lord 81, 88 law
House of Lords droit commun 103
Appellate Committee 51, 60, 87–90, 192 droit naturel 103
end of judicial business 90 dying out of 168
human rights exclusivity of 10, 13, 198, 226
and comparison 60–4 free 102, 130–1
ideology of 61, 209, 267 importation 269–71
litigation 53, 62 plurality 11
universality 61, 81–2 territoriality 10
Hungary 11, 40, 63, 158, 171, 181–3, 244, 256 Lebon 109–10
législation comparé 13
ideology legitimacy
judicial 39, 204–5, 218, 273 institutional 98, 107, 230, 237–40
of bound judicial decision-making 204, 206 of judicial comparisons 62, 205, 208
of free judicial decision-making 204–5 modernist 221–2
of legal and rational judicial decision- pre-modern 221
making 205, 211 substantive 230
India 92 libre recherche scientifique 101–2
intent litigation
historical 128, 130, 133–4, 184, 198–9 constitutional 54, 276
legislative 29, 78, 102, 104, 125, 130 costs of 53
objective 104, 133–4 human rights 53
original 129, 133–4 in private/public law 53
international law strategic 41
private 22 livre préliminaire see Code civil, livre préliminaire
public 23–5, 141
interpretation Mansfield, Lord 273
authentic 206–7 Mečiar, Vladimír 176, 183
dynamic 103–4, 130, 199, 210, 277 minimalism
further development of the law 31, 44, 126, academic 36–9, 249
128, 131–2, 193 judicial 234
historical 128, 130, 133–4, 184, 198–9
and legislative history 78, 133–4 Naczelny Sąd Administracyjny 256
legislative valuations 131–2, 206–7 Najvyšší súd 185–9
modern methods of 104, 127 Nejvyšší soud 162–4
open methods of 106 Nejvyšší správní soud 164–8, 265
originalism 128, 277 networks
purposive 104, 131, 156, 199, 259–63 judicial 47–50, 73, 86
static 103
teleological see interpretation, purposive originalism see interpretation, originalism
textualism 259, 261–3
intervention (by a third party) 52–3 Peace of Westphalia 12
Ireland 42, 86, 88, 92, 175 Poland 58, 63, 158, 169, 171, 180, 256–7
Italy 40, 112, 144, 159, 162, 177, 261 Portalis 100, 105, 211
310 Index
positivism 200, 203, 204, 218, 286 Slovakia 15, 27, 30, 40, 42, 45, 51, 58, 63, 70,
preater legem see decision-making, within 154, 159, 168, 170, 174–91, 193,
the law 254–6, 263
precedent South Africa 86, 88, 92, 197
and statutes 76 standards 105
binding 77–8, 213 Switzerland 12, 145, 149, 159, 166, 175, 273
inflation of 43, 79 system
persuasive 77–8 axiomatically closed 79, 135
single 216 axiomatically open 79, 135
work with 227
Privy Council 30, 91–2 telos see interpretation, purposive
procedure transition
adversarial 21, 46, 51–2 and authority 228, 254
case selection 50–1, 167, 185, 195, 256 and courts 158, 181, 193, 253, 257
inquisitorial 21, 46, 51–2 constitutional courts 265–8
public/private divide 57–60 impact on judicial techniques 260–5
legal 168, 171, 253
rapporteur public 108–9, 112, 118 nature of 255
ratio legis 128 transplants 246–7
Rechtsdogmatik 122, 127, 278 Trybunał Konstytucyjny 256–7
référé legislative see interpretation, authentic
Reichsgericht 14, 145 United Kingdom Supreme Court 90
rights United States of America 15, 40, 90, 92, 127,
subjective public 53 144, 158, 166, 175, 197, 274–81
Russia 244 United States Supreme Court 276, 278, 280
Ústavní soud 55, 157–62, 180–1, 189, 264
Saleilles, Raymond 102, 103–4, 118 Ústavný súd 55, 178–85, 187, 268
Savigny, FC von 127–9, 133, 153, 169
scholarship valuations 131–3
of comparative law 16, 41, 241–2 distance effect of 207
Continental 42, 279 judicial overruling of 208
and courts 17, 72–3, 92, 100, 118, legislative 134, 199, 207
135–6, 140, 149, 157, 193, 212, Verfassungsgerichtshof 160
224–6 Volksgeist 274
politicization of 280
role 73, 118, 157, 193, 241, 249 Weber, Max 56, 127, 222
in the USA 278–81 Wertungsjurisprudenz see valuations
Schweizerisches Zivilgesetzbuch see Civil code, Wróblewski, Jerzy 204–5
Swiss
Scotland 12, 85 Zivilgesetzbuch 211
separation of powers 204, 207, 278 Zweigert, Konrad 123–6

Comparative Reasoning in European Supreme Courts by Michal Bobek

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Comparative Reasoning in European Supreme Courts by Michal Bobek

Uploaded by

Copyright:

Available Formats

COMPARATIVE REASONING IN EUROPEAN

PART I. THE F RAMEWORK

2. Foreign Law in Courts: A Typology 19

PART II. THE P RACTICE

5. England and Wales 75

8. Czech Republic 152

10. An Empirical Epilogue: Quantity, Quality, and Beyond 192

PART III. THE APPRAISAL

12. On Authority, Citation, and Silence 220

13. Comparative Reasoning by Courts: Some Classical Points Revisited 237

Select Bibliography 288

This book offers no grand theories. It designs no new groundbreaking approaches

explicitly, the sovereign legislature sought to reafﬁrm its own exclusivity in

1.2. . . . Rising in Quantitative Terms

Rechtsprechung’ (1970) 34 RabelsZ 458, 463–71.

Central European post-communist countries, such as the Czech Republic or

and ch 9 (on Slovakia).

2. The Context of the Current Debates

detail: Constantinesco (n 28) Band I, 69–202.

32 Further discussed in ch 14, section 3.2.

The object of this study is non-mandatory references to foreign law by a national

Communication’ (1994–1995) 29 U Richmond LR 99 or AM Slaughter, ‘A Global Community of

1. Mandatory Uses of Foreign Law

Foreign Law in National Courts: A Comparative Perspective (Nijhoff 2003) 236ff.

1.1. Private International Law (Conﬂict of Laws)

1.2. Mutual Recognition, Extradition, and Other

1.3. Directly Applicable Sources of Public International Law

Dalloz 2006) 415ff.

1997) 64 or Delbrück and Wolfram (n 9) 105–6.

Greece (Art 28 (1) of the Greek Constitution).

There is a speciﬁc type of procedure before the German Federal Constitutional

1.4. Law of the European Union

Grundgesetz (10th edn, Luchterland 2004) 1784ff.

1.5. Law of the European Convention on Human Rights

Ticaret Anonim Şirketi v Ireland, app no 45036/98, ECHR 2005-VI [156].

2. Advisable Uses of Foreign Law

2.1. Reference to a Parent International Law

2.2. Laws Shared with or Taken from Other States

2.3. General Principles of Law

Further see ch 5, section 3.1.

Van Erp (n 2) 190.

A reference to foreign support backing up the claim of universality is, however,

2.4. Intra-federal References

Comparative Law by Courts’ in Drobnig and Van Erp (n 2) 7.

41 Art 4 (1) of the Constitution of the United States of America.

Authorities under Community Constitutional Law’ (1998) 23 ELR 109.

3. Voluntary Uses of Foreign Law

vagueness are addressed in ch 11, section 4.1.

4. Non-mandatory Uses of Foreign Law and Legal Comparisons

Whether or not judges use comparative arguments is determined by a complex

1. Introduction: Of Abstract Models and Causality

the number of concurring/dissenting opinions and the likelihood of comparative reasoning—B

a different level of abstraction. See further ch 13, section 4.

2.1. The Political and the Legal

undertone. Equally, the political uncertainly and indecisiveness of the United

2.2. The Size

2.3. The Age

11 For detail, see ch 14, section 2.3.

anywhere, it tends to be systematically undertaken only in courts which have, albeit

16 K Schiemann, ‘The Judge as Comparatist’ in B Markesinis and J Fedtke, Judicial Recourse to

Foreign Law: A New Source of Inspiration? (UCL Press 2006) 369.

3.2. Analytical Back-up

temporarily be seconded to assume an auxiliary position (conseiller référendaire, wissenschaftlicher

3.3. Points of Reference, Networks, Databases