Comparative Reasoning in European Supreme Courts

ISBN : 9780199680382

Michal Bobek
320 ページ
172 x 239 mm

The last two decades have witnessed an exponential growth in debates on the use of foreign law by courts. Different labels have been attached to the same phenomenon: judges drawing inspiration from outside of their national legal systems for solving purely domestic disputes. By doing so, the judges are said to engage in cross-border judicial dialogues. They are creating a larger, transnational community of judges. This book puts similar claims to test in relation to highest national jurisdictions (supreme and constitutional courts) in Europe today. How often and why do judges choose to draw inspiration from foreign materials in solving domestic cases? The book addresses these questions from both an empirical and a theoretical angle. Empirically, the genuine use of comparative arguments by national highest courts in five European jurisdictions is examined: England and Wales, France, Germany, the Czech Republic, and Slovakia. On the basis of comparative discussion of the practice and its national theoretical underpinning in these and partially also in other European systems, an overreaching theoretical framework for the current judicial use of comparative arguments is developed. Drawing on the author's own past judicial experience in a national supreme court, this book is a critical account of judicial engagement with foreign authority in Europe today. The sober middle ground inductively conceptualized and presented in this book provides solid jurisprudential foundations for the ongoing use of comparative arguments by courts as well as its further scholarly discussion.


1. The Debate on Comparative Reasoning by Courts
2. Foreign Law in Courts: A Typology
3. Factors Influencing the Use of Comparative Argument by Courts
4. Prologue: The Method and its Pitfalls
5. England and Wales
6. France
7. Germany
8. Czech Republic
9. Slovakia
10. An Empirical Epilogue: Quantity, Quality and Beyond
11. Comparative Reasoning by Courts: the Theoretical Playing Field
12. On Authority, Citation, and Silence
13. Comparative Reasoning by Courts: Some Classical Points Revisited
14. The Deviations: Political Over- and Non-comparisons


Michal Bobek is Professor of European Law at the College of Europe. Formerly Anglo-German Fellow at the Institute of European and Comparative Law, University of Oxford, he remains associated with the Institute. He qualified as judge in the Czech Republic and worked as legal secretary to the President of the Supreme Administrative Court, where he also headed the Research and Documentation Department of the Court.