By Elaine Mak
Why do judges examine felony assets which originated outdoor their very own nationwide felony approach, and the way do they use arguments from those resources in determining household situations? in line with interviews with judges, this e-book offers the interior tale of the way judges have interaction with foreign and comparative legislation within the optimum courts of the USA, Canada, the united kingdom, France, and the Netherlands. A comparative research of the perspectives and studies of the judges clarifies how the decision-making of those Western courts has constructed in gentle of the internationalization of legislations and the elevated possibilities for transnational judicial verbal exchange. whereas the qualitative research unearths the reasons which judges declare for utilizing overseas legislations and the impression of 'globalist' and 'localist' methods on judging, the ebook additionally discovers a convergence of practices among the courts. This empirical research is complemented by way of a constitutional-theoretical inquiry into the procedural and significant elements of felony evolution, which permit or constrain the advance and attainable convergence of optimum courts' practices. the 2 strands of research are attached in a last contextual mirrored image at the destiny improvement of the function of Western excessive courts. This particular examine might be of curiosity to all these drawn to the method of judicial decision-making and the results of globalization at the criminal method. (Series: Hart stories in Comparative Public legislations - Vol. three)
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Additional info for Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts
Example text
3 A central question of the research is: how can we explain these similarities and differences? The argument presented in this chapter is that similarities and differences between national judicial practices relate to the constitutional rules, principles and conventions for the functioning of the highest courts. 4 We will see that the development of judicial practices, as a form of legal evolution, depends on the constitutional procedures and substantive norms of a national legal system. 5 This openness varies between legal systems.
44 The Constitution is not altered very frequently in either country. The last integral amendment to the Dutch Constitution took place in 1983. 45 Compared with the Dutch and French systems, the German Constitution, by contrast, contains a relatively light amendment procedure. 47 41 V Ferreres-Comella, ‘A Defense of Constitutional Rigidity’, in P Comanducci and R Guastini (eds), Analisi e diritto 2000. Ricerche di giurisprudenza analitica (Turin, G Giappichelli Publisher, 2000) 46. 42 Ibid 46–47.
55 BVerfG 29 May 1974, Solange I [1974] 2 CMLR 540, 37 BVerfGE 271; BVerfG 22 October 1986, Solange II [1987] 3 CMLR 225, [1986] 73 BVerfGE 339. 56 See, eg P Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto, Carswell Legal Publications, 1987); ER Alexander, ‘The Supreme Court of Canada and the Canadian Charter of Rights and Freedoms’ (1990) 40 University of Toronto Law Journal 1; FM Bevilacqua, The Supreme Court of Canada: A Politically Legal Role: A Study of the Policy-Making Role of the Courts and the Impact of the Canadian Charter of Rights and Freedoms (Kingston (Ontario), Queen’s University, 1990).