Use of Foreign Precedents by Constitutional Judges

Tania Groppi is Professor of Public Law at the University of Siena.Marie-Claire Ponthoreau is Professor of Constitutional Law and Comparative Law at the University of Bordeaux.

The collected data for each jurisdiction makes for engaging reading. It reveals details of the extent of visible (and sometimes implied) comparative activity that each of the courts displays in its jurisprudence. It also amounts to an assessment of the successes and shortcomings of the use of foreign precedent (in terms of the level of reciprocal influence of well-functioning constitutional systems) by judges that are more or less inhibited by their judicial culture to do so…The editors’ concluding chapter conveniently provides the reader with a comparative overview, both of the quantitative and qualitative results of the country reporters, and a tentative perspective on the future of comparative judicial practice in constitutional cases…The purpose and goals of the project are met by the book: we now have a clearer picture of how some of the most prominent constitutional courts deal (or desist from dealing) with comparable judgments in other countries.

• Introduction. The Methodology of the Research: How to Assess the Reality of Transjudicial Communication? Tania Groppi and Marie-Claire PonthoreauPart I 1. Reference to Foreign Precedents by the Australian High Court: A Matter of Method Cheryl Saunders and Adrienne Stone2. 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 Gentili3. India: A 'Critical' Use of Foreign Precedents in Constitutional Adjudication Valentina Rita Scotti4. The Supreme Court of Ireland and the Use of Foreign Precedents: The Value of Constitutional History Cristina Fasone5. Israel: Creating a Constitution—The Use of Foreign Precedents by the Supreme Court (1994–2010) Suzie Navot6. Namibia: The Supreme Court as a Foreign Law Importer Irene Spigno7. South Africa: Teaching an 'Old Dog' New Tricks? An Empirical Studyof the Use of Foreign Precedents by the South African Constitutional Court (1995–2010) Christa RautenbachPart II 8. Austria: Non-cosmopolitan, but Europe-friendly—The Constitutional Court's Comparative Approach Anna Gampervi Contents9. Lifting the Constitutional Curtain? The Use of Foreign Precedent by the German Federal Constitutional Court Stefan Martini10. Hungary: Unsystematic and Incoherent Borrowing of Law. The Use of Foreign Judicial Precedents in the Jurisprudence of the Constitutional Court, 1999–2010 Zoltán Szente11. A Gap between the Apparent and Hidden Attitudes of the Supreme Court of Japan towards Foreign Precedents Akiko Ejima12. Mexico: Struggling for an Open View In Constitutional Adjudication Eduardo Ferrer Mac-Gregor and Rubén Sánchez Gil13. Romania: Analogical Reasoning as a Dialectical Instrument Elena Simina Tanasescu and Stefan Deaconu14. Russia: Foreign Transplants in the Russian Constitution and Invisible Foreign Precedents in Decisions of the Russian Constitutional Court Sergey Belov15. Judges as Discursive Agent: The Use of Foreign Precedents by the Constitutional Court of Taiwan Wen-Chen Chang and Jiunn-Rong Yeh16. United States of America: First Cautious Attempts of Judicial Use of Foreign Precedents in the Supreme Court's Jurisprudence Angioletta SpertiConclusion. The Use of Foreign Precedents by Constitutional Judges: A Limited Practice, An Uncertain Future Tania Groppi and Marie-Claire Ponthoreau