An Overture to Comparative Legal Reasoning in National Case Law

“No foreign judges” is a recurrent clamor in contemporary Swiss politics. With this slogan some Swiss politicians challenge the European Supreme Court’s jurisdiction within the bilateral agreements between Switzerland and the European Union. Treaty negotiations usually associated with sober diplomacy thereby receive a strong emotional flavor. Even academic discussions on more subtle forms of how “foreign law” influences national legal discourse sometimes turn emotional: Should courts be permitted to look to foreign jurisdictions to guide their decisions, to create their arguments by comparing foreign law with their own? Occasionally, such idea is subject to harsh criticism. Concerns raised against it partially coincide with those “against foreign judges”: Such references to “foreign law” lack democratic legitimacy. They threaten national sovereignty and distort the cultural identity of one’s own law. And legal professionals may add: Comparative arguments impurify the doctrinal system of domestic law. In a nutshell, the influence of foreign law on national case law needs to be avoided. For there is a lot to lose, but little to gain. Proponents of comparative legal reasoning paint quite a different picture of foreign judges and jurisdictions. The origins of their idea lead us back to …

Details