Editorial: On the Use of Foreign Law

The American Journal of Comparative Law, 2016

Utrecht Law Review, 2012

Recourse to precedents in legal adjudication is a source of intriguing theoretical challenges and serious practical difficulties. That is especially so when we have to do not with domestic precedents but with foreign ones, that is, with decisions taken by foreign courts and international judicial institutions, particularly when there is no formal obligation for a court to resort to foreign law. Can a case decided by the judiciary of a different legal order—even if that case is remote and that legal order operates under different procedural rules and substantive laws—have any bearing on a dispute arising domestically here and now? Should such a foreign precedent be acknowledged to have any (formal) binding force on the case in question? How could the practice of following foreign precedents be justified? This paper is primary meant to lay the theoretical basis on which those questions can be addressed. The basis on which we proceed in answering those questions essentially lies in a theory of legal reasoning that, for lack of a better phrase, can be labelled a dialectical approach informed by standards of discursive rationality

A critical analysis of the Judicial use of foreign case law, 2019

In Uganda, Foreign case law has undoubtedly had a major impact on both domestic Judgments and Constitutional interpretation as shall be expounded in this paper. Courts and legal practitioners normally confronted with significant legal concerns do pick a leaf from the opinions of foreign Courts as a solution to comparable problems. This paper discusses the desirability and legitimacy of the Judicial use of reference to foreign case law as an aid to the interpretation of the 1995 Constitution with reference to cases between 1995 to date.

International and Comparative Law Quarterly, 2011

This is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research.Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that ...

American Journal of Comparative Law, 2014

The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides quantitative evidence from ten European supreme courts in order to assess the desirability of such crosscitations. In addition, it examines individual cases qualitatively, developing a taxonomy of crosscitations based on the degree to which courts engage with foreign law. Overall, this article highlights the often superficial nature of cross-citations in the some courts; yet, it also concludes that, by and large, our analysis supports the use of cross-citations: it does not have the pernicious effects sometimes suggested by critics of the practices, such as undercutting national sovereignty and the legitimacy of the legal system. At best, cross-citations provide a source of inspiration how to interpret national law. At worst, they are largely ornamental and marginally help to make a particular policy argument appear more persuasive.

2015

2011

The analysis of the questionnaires received shows that the necessity to resort to foreign law varies among the concerned legal professionals. Lawyers , although not specialized in only international and cross-border cases, are most frequently confronted with the necessity to refer to foreign law. Moreover, their activity is partially of a cross-border profile (the percentage varies between twentyfive percent to fifty percent and between fifty percent to seventy-five percent). As for judges (1 st and 2 nd instance), their frequency in applying foreign law and the proportion of "international cases" in their annual caseload are generally extremely low. The frequency with which notaries apply foreign law varies quite a lot; however, in general the proportion of their "international cases" still remains low (less than twenty-five percent).

The American Journal of Comparative Law, 1976