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Title: Foreign Precedents in Judicial Argument: A Theoretical Account
Authors: Bertea, Stefano
Sarra, C.
First Published: 2014
Publisher: published on behalf of the Department of Law at the European University Institute, Florence
Citation: European Journal of Legal Studies, 7(2) Winter 2014
Abstract: 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 primarily 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.
ISSN: 1973-2937
Version: Post-print
Status: Peer-reviewed
Type: Journal Article
Rights: Archived with reference to SHERPA/RoMEO and publisher website. "The EJLS is firmly established as an open-access journal, which offers authors the widest possible audience in publishing their work, every article being freely available on the internet."
Description: As University of Leicester School of Law Research Paper No. 14‐20
Appears in Collections:Published Articles, School of Law

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