Legal Reasoning: Arguments from Comparison

This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this end, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

This paper focuses on the practice of making reference to foreign law in legal adjudication. On the one hand, this practice has received overwhelming attention from legal scholars in the last two decades under the headings of “judicial dialogue”, “judicial cross-fertilization” or “constitutional conversation”; on the other hand, a systematic, theoretical picture of this practice is still lacking. The paper aims to bridge this gap by elucidating the structure of legal comparison in judicial decision-making from the point of view of argumentation theory. To this purpose, the paper examines the various forms of comparative reasoning, identifies the set of their implicit premises and shows under what conditions referring to foreign law in legal adjudication is justified on its own grounds. This analysis will lead us to discuss the thesis according to which comparative reasoning by courts is changing the nature of law and the structure of contemporary legal systems.

1999

M ost thanks I owe, however, to my family, my parents, my brother and Orvokki Vuori. They have patiently helped us. Anu, Justus and Walle are my main support. This is why I dedicate this thesis to you, Anu, Justus and Walle. In Villa Schifanoia, on 3d

Law and Philosophy Library, 2001

ARGUMENT 2. SOME HISTORY 2.1. Early comparisons 2.2. Modem comparative law 2.3. Conclusions 3. TO THE IDEA OF COMPARATIVE LEGAL REASONING 3.1. Introduction 3.2. Traditional approach 31 3.3. Comparative law argument and comparative legal culture 33 3.4. Comparative law as comparative legal reasoning 3.5. Conclusions: the basic structure of practical comparative legal reasoning 4. GENERAL CONCLUSIONS CHAPTER 3: COMPARATIVE LAW IN EUROPEAN LEGAL ADJUDICATION 1. INTRODUCTION 1.1. Preliminary remarks 1.2. Some "legal" bases for the use of comparative law in adjudicative reasoning 1.3. Some observations concerning the material of the study 1.4. The use of comparative law in some national legal orders 63 1.4.1. General remarks 63 1.4.2. Comparative reasoning in relation to international legal obligations European law and national legal orders Other types of international obligations 1.4.3. Some examples 1.4.4. Some general remarks on internal comparison, mixed courts, and private international law comparison 2. COMPARATIVE LAW IN THE EUROPEAN LEVEL CASE LAW 2.1. European Community law 2.1.1. General remarks 2.1.2. On interpretation in Community law 101 vi T ABLE OF CONTENTS 2.l.3. The legal basis for the use of comparative law 103 2.l.4. General remarks on the use of comparative law in the European Community legal order 104 2.l.5. Some general remarks on comparative influences in Community law 105 2.l.6. Comparative reasoning in the realm of international law in the European Court of Justice 107 2.l. 7. The use of state legal systems in the absence of international obligations 2.l.8. Conclusions On the basis ofthe case law On the basis of the interviews 2.2. The European System of Human Rights 153 2.2.l. General remarks 2.2.2. Some examples of comparative reasoning Trial within a reasonable time or release pending trial Corporal punishment in private schools Non-enforcement of access and custody rights Non-recognition of paternity Transsexuality Pre-trial detention 2.2.3. Comparative reasoning related to Article 10(1 and 2) (''freedom of expression" and "necessity in a democratic society") in of the European System of Human Rights (Cases Handyside, Engel,

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

To what extent is the language of judicial opinions responsive to the political and social context in which constitutional courts operate? Courts are reason-giving institutions with argumentation playing a central role in constitutional adjudication. However, a cursory look at just a handful of constitutional systems suggests important differences in the practices of constitutional judges whether in matters of form, style or language. Focusing on independently verified leading cases globally, a combination of qualitative and quantitative analysis offers the most comprehensive and systematic account of constitutional reasoning to date. This analysis is supported by the examination of eighteen legal systems around the world, including the European Court of Human Rights and the European Court of Justice. Universally common aspects of constitutional reasoning are identified in this book, and contributors also examine whether common law countries differ from civil law countries in this respect.

6 JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 183-208 (2019), 2019

While the word "comparative" refers to a cognitive and intellectual activity supposing that there are several elements to compare, the word "law" is used in the singular, as if law was to be compared to itself. The whole phrase indicates that comparison takes place within the study of the law, but the use of the singular does not point to a pluralistic approach: what do we mean by law? Should we not talk about "comparing the laws" or "legal comparison"? With a refl ection on the words of the law as a starting point, this paper visits the corpus of comparative law in a pluralistic perspective and the process as a basic element of cognition. Words of the comparatists are then visited in successive steps describing what they do: fi rst the discovery of the foreign legal system with immersion in its language and culture yet keeping some outsider awareness to read the silence in language. Then comes the need to communicate on this other legal system, which is in essence an experience in translation. Based on what they learn, comparatists also build systems, using or developing common words in the various realms of international law, often for practical purposes. Last but not least, some aspire to develop neutral terms for the sake of knowledge in order to develop a specialty language of legal science. This latter activity tends to be neglected as a utopian aspiration. It encompasses the creation of precise terms and meta-categories. In any case, words are the tool of comparatists and therefore constantly evolve.

Yale Journal of International Law, 2003

III. FORMS OF DIALOGUE AND MODELS OF JUDICIAL REASONING ..................................................... 423 A . D ialogic M odel ............................................................................................................... 424 1. Foreign Law and Transnational Dialogue ......................................................... 424 2. Lower Courts, Legislatures, and Local Dialogue ............................................... 427 a. Standards, Balancing, and Normative Reasoning .................................. 428 b. The Supreme Court and Democratic Deliberation ................................. 432 3. Dialogue and Comparative Reasoning ............................................................... 437 B . The Enforcem ent M odel .................................................................................................. 439 1. Foreign Law and the Problem of Coherence ...................................................... 439 2. Lower Courts, Legislat...

Romanian Journal of Comparative Law, 2019

The Invisible Factors Behind Using Comparative Law in Constitutional Adjudication. Romanian Journal of Comparative Law, 2019/1, 201-226. Abstract Courts dealing with constitutional issues are often using comparative law when fulfilling their functions: they refer to foreign law or at least consult comparative material. The scope and form of the use of comparative law is different at the different courts and there are severe criticisms about the lack of methodology. These phenomena be explained by the judges’ and courts’ different aims when using comparative law, and by the different factors that influence them when deciding in which cases, in which forms, and which jurisdictions’ law they consult or refer to. However, most of these aims and factors are invisible and therefore unveiling them demands complex research methods. The understanding of these aims and factors can help scholars to prepare methodological standpoints for judges to support them in avoiding misuse of comparative law and ‘cherrypicking’, and through this strengthening the legitimacy of the courts. Keywords: comparative law; judicial dialogue; constitutional adjudication; citation; horizontal communication; methodology