Abstract
Does comparative law simply facilitate the incorporation by judges of ‘holus bolus from some other system of law’.1 Is such a view tenable?
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References
Lord Diplock in McShannon v Rockware Glass Ltd [1978] A.C. 995, 811.
E. Orucu, ‘Comparative Law in British Courts’, in U. Drobnig and S van Erp (eds) The Use of Comparative Law by Courts ( The Hague, Kluwer Law International, 1999 ), p. 253.
For the use of comparative law by courts in general in 17 jurisdictions see the General Report submitted by E. Drobnig, ‘The Use of Comparative Law by Courts’, in U. Drobnig and S. van Erp (eds), above note 2,.3–21.
See P. Kearns, ‘United Kingdom Judges and Human Rights Cases’, in Orucu (ed), above note 4, 63–83.
See D.L. Carey-Miller, ‘The Great Trek to Human Rights: The Role of Comparative Law in the Development of Human Rights in Post-reform South Africa, in Orucu (ed),above note 4, 201–228.
Although it is said that in the US courts rarely cite foreign law (See D.S. Clark, ‘The Use of Comparative Law by American Courts’, (Supp. 1994) 42 American Journal of Comparative Law, 23), it has also been shown that in hard cases in the area of constitutional law, the US Supreme Court does consider Canadian and ECJ and ECHR cases (See D. Fontana, ‘Refined Comparativism in Constitutional Law’ (2001) 49 UCLA Law Review, 539, who calls this type of reference ‘refined comparativism’ which he says is ‘a contingent strategy of interpretation’.)
See A.M. Slaughter, ‘A Typology of Transjudicial Communication’ (1994) University of Richmond Law Review, 99.
B. Grossfeld, The Strength and Weakness of Comparative Law, trans. T. Weir ( Oxford, Clarendon Press, 1990 ), p. 33.
See for example C. Dupre, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Oxford, Hart Publishing, 2003); and also I.C. Kaminski, ‘The Power of Aspiration: The Impact of European Law on a non-EU Country’, in M. van Hoecke and F. Ost (eds), The Harmonisation of European Private Law (Oxford, Hart Publishing, 2000), 239–252.
B Markesinis, ‘Comparative Law - A Subject in Search of an Audience’ (1990) 53 Modern Law Review, p. 4.
See L. Heuschling, ‘Comparative Law and the European Convention on Human Rights in French Human Rights Cases’ in Orucii (ed) above note 4, pp. 23–48.
J. Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’, in I. Alexander (ed), Constitutionalism: Philosophical Foundations (Cambridge, Cambridge University Press, 1998), 152 at p. 190.
See C. McCrudden, ‘Human Rights and Judicial Use of Comparative Law’, in Orucu (ed), above note 4, pp. 1–22.
See E. Orucu, ‘ The Turkish Experience with Judicial Comparativism in Human Rights Cases’ in E. Orucu (ed), above note 4, pp. 131–158.
P Mahoney, ‘The Comparative Method in Judgments of the European Court of Human Rights: Reference back to National Law’, paper delivered at the BIICL Conference ‘Comparative law Before National and International Courts’ on 21 February 2003 (unpublished) which is an updated version of an article P Mahoney, ‘The Role of Comparative Law in the Emergence of European Law, 2000 (a publication of the Swiss Institute of Comparative Law)
M.A. Glendon, Rights talk: The Impoverishment of Political Discourse (New York, Free Press, 1991), at p. 158.
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Örücü, E. (2004). Comparative Law and the Tuners of the Law. In: The Enigma of Comparative Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5596-2_9
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