The Use of Foreign Precedents by Constitutional Judges (Hart Studies in Comparative Public Law)

In 2007 The International Association Of Constitutional Law Established An Interest Group On 'the Use Of Foreign Precedents By Constitutional Judges' To Conduct A Survey Of The Use Of Foreign Precedents By Supreme And Constitutional Courts In Deciding Constitutional Cases. Its Purpose Was To Determine - Through Empirical Analysis Employing Both Quantitative And Qualitative Indicators - The Extent To Which Foreign Case Law Is Cited. The Survey Aimed To Test The Reliability Of Studies Describing And Reporting Instances Of Transjudicial Communication Between Courts. The Research Also Provides Useful Insights Into The Extent To Which A Progressive Constitutional Convergence May Be Taking Place Between Common Law And Civil Law Traditions. The Present Work Includes Studies By Scholars From African, American, Asian, European, Latin American And Oceania Countries, Representing Jurisdictions Belonging To Both Common Law And Civil Law Traditions, And Countries Employing Both Centralised And Decentralised Systems Of Judicial Review. The Results, Published Here For The First Time, Give Us The Best Evidence Yet Of The Existence And Limits Of A Transnational Constitutional Communication Between Courts.--pub. Desc. Introduction : The Methodology Of The Research : How To Assess The Reality Of Transjudicial Communication? / Tania Groppi And Marie-claire Ponthoreau -- Pt. 1: Reference To Foreign Precedents By The Australian High Court : A Matter Of Method / Cheryl Saunders And Adrienne Stone.-- Canada : Protecting Rights In A Worldwide Rights Culture, An Empirical Study Of The Use Of Foreign Precedents By The Supreme Court Of Canada (1982-2010) / Gianluca Gentili -- India : A Critical Use Of Foreign Precedents In Constitutional Adjudication / Valentina Rita Scotti -- The Supreme Court Of Ireland And The Use Of Foreign Precedents: The Value Of Constitutional History / Cristina Fasone -- Israel : Creating A Constitution: The Use Of Foreign Precedents By The Supreme Court (1994-2010) / Suzie Navot -- Namibia : The Supreme Court As A Foreign Law Importer / Irene Spigno -- South Africa : Teaching An Old Dog New Tricks? : An Empirical Study Of The Use Of Foreign Precedents By The South African Constitutional Court (1995-2010) / Christa Rautenbach -- Pt. 2: Austria : Non-cosmopolitan, But Europe-friendly : The Constitutional Court's Comparative Approach / Anna Gamper -- Lifting The Constitutional Curtain? : The Use Of Foreign Precedent By The German Federal Constitutional Court / Stefan Martini -- Hungary : Unsystematic And Incoherent Borrowing Of Law : The Use Of Foreign Judicial Precedents In The Jurisprudence Of The Constitutional Court, 1999-2010 / Zoltán Szente -- A Gap Between The Apparent And Hidden Attitudes Of The Supreme Court Of Japan Towards Foreign Precedents / Akiko Ejima -- Mexico : Struggling For An Open View In Constitutional Adjudication / Eduardo Ferrer Mac-gregor And Rubén Sánchez Gil -- Romania : Analogical Reasoning As A Dialectical Instrument / Elena Simina Tanasescu And Stefan Deaconu -- Russia : Foreign Transplants In The Russian Constitution And Invisible Foreign Precedents In Decisions Of The Russian Constitutional Court / Sergey Belov -- Judges As Discursive Agent : The Use Of Foreign Precedents By The Constitutional Court Of Taiwan / Wen-chen Chang And Jiunn-rong Yeh -- United States Of America : First Cautious Attempts Of Judicial Use Of Foreign Precedents In The Supreme Court's Jurisprudence / Angioletta Sperti -- Conclusion : The Use Of Foreign Precedents By Constitutional Judges : A Limited Practice, An Uncertain Future / Tania Groppi And Marie-clair Ponthoreau. Edited By Tania Groppi And Marie-claire Ponthoreau. Includes Bibliographical References. Cover 1 Prelims 2 Contents 6 Table of Cases 8 Table of Legislation 26 Introduction. The Methodology of the Research: How to Assess the Reality of Transjudicial Communication? 40 Part I 50 1. Reference to Foreign Precedents by the Australian High Court: A Matter of Method 52 2. Canada: Protecting Rights in a 'Worldwide Rights Culture'. An Empirical Study of the Use of Foreign Precedents by the Supreme Court of Canada (1982-2010) 78 3. India: A 'Critical' Use of Foreign Precedents in Constitutional Adjudication 108 4. The Supreme Court of Ireland and the Use of Foreign Precedents: The Value of Constitutional History 136 5. Isreal: Creating a Constitution - The Use of Foreign Precents by the Supreme Court (1994-2010) 168 6. Namibia: The Supreme Court as a Foreign Law Importer 194 7. South Africa: Teaching an 'Old Dog' New Tricks? An Empirical Study of the Use of Foreign Precedents by the South African Constitutional Court (1995-2010) 224 Part II 250 8. Austria: Non-cosmopolitan, but Europe-friendly - The Constitutional Court's Comparative Approach 252 9. Lifting the Constitutional Curtain? The Use of Foreign Precedent by the German Federal Constitutional Court 268 10. Hungary: Unsystematic and Incoherent Borrowing of Law. The Use of Foreign Judicial Precedents in the Jurisprudence of the Constitutional Court, 1999-2010 292 11. A Gap between the Apparent and Hidden Attitudes of the Supreme Court of Japan towards Foreign Precedents 312 12. Mexico: Struggling For an Open View In Constitutional Adjudication 340 13. Romania: Analogical Reasoning as a Dialectical Instrument 360 14. Russia: Foreign Transplants in the Russian Constitution and Invisible Foreign Precedents in Decisions of the Russian Constitutional Court 386 15. Judges as Discursive Agent: The Use of Foreign Precedents by the Constitutional Court of Taiwan 412 16. United States of America: First Cautious Attempts of Judicial Use of Foreign Precedents in the Supreme Court's Jurisprudence 432 Conclusions. The Use of Foreign Precedents by Constitutional Judges: A Limited Practice, An Uncertain Future 450 In 2007 the International Association of Constitutional Law established an Interest Group to conduct a survey of the use of foreign precedents by Supreme and Constitutional Courts. This results of the survey, presented here, gives us the best evidence yet of the existence, and extent, of a transnational constitutional dialogue between courts.