Foreign Precedents in Judicial Argument: A Theoretical Account

29 Pages Posted: 17 Jul 2014

See all articles by Stefano Bertea

Stefano Bertea

Leicester Law School

Claudio Sarra

University of Padova

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Date Written: July 16, 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 — particularly 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.

Keywords: foreign precedent, legal reasoning, jurisprudence, dialectical rationality, legal authority

Suggested Citation

Bertea, Stefano and Sarra, Claudio, Foreign Precedents in Judicial Argument: A Theoretical Account (July 16, 2014). University of Leicester School of Law Research Paper No. 14‐20. Available at SSRN: https://ssrn.com/abstract=2467155 or http://dx.doi.org/10.2139/ssrn.2467155

Stefano Bertea (Contact Author)

Leicester Law School ( email )

University Road
Leicester LE1 7RH, LE1 7RH
United Kingdom

Claudio Sarra

University of Padova ( email )

via 8 Febbraio 1842, n. 2
Padova, Padova 35122
Italy

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