The Optimal Use of Comparative Law

Abstract

A common view is that national courts should use comparative law so that they can learn from the experience of other states. This view relies on the Condorcet Jury Theorem, according to which if decisions of a majority of states converge, these decisions are likely to be good decisions. But the problem with this view is that the Jury Theorem depends on decisions being made independently. Therefore, the use of comparative law by national courts is self-defeating — if states base their decisions on the decisions of other states, their decisions would no longer be independent. In fact, they may fall prey to information cascades. This problem can be resolved by a doctrine used by the European Court of Human Rights (ECHR) called Emerging Consensus. According to this doctrine, the ECHR should find states in violation of the European Convention if the states do not protect rights protected by the majority of European states. If all states make their laws independently and the ECHR enforces the legal solutions adopted by the majority of all states, no information cascades will arise and the benefits of the Jury Theorem would be fully realized. The paper discusses the possibility that European states or the ECHR itself would not follow these simple rules and offers some practical solutions to prevent these problems.

Keywords: European Court of Human Rights, Emerging Consensus, Jury Theorem

JEL Classification: K33