Comparative Reasoning in European Supreme Courts, by Michael Bobek
![handle is hein.journals/incolq63 and id is 801 raw text is: BOOK REVIEWS
Comparative Reasoning in European Supreme Courts by MICHAL BOBEK [Oxford University Press,
Oxford, 2013, ix+3Opp, ISBN 978-0-19-968038-2, £50 h/bk]
Comparative law arguments are found in a very small percentage of decisions of supreme courts,
yet Bobek argues that they play an important role in judicial reasoning when filling gaps in the law.
The great merit of this book is that it encourages the reader to rethink his or her expectations about
the place of comparative materials within judicial reasoning. Common lawyers, especially, would
expect that an argument which played a significant part in reaching a decision would feature
explicitly in the reasoned judgment. The absence of material from a judgment would indicate its
lack of significance. The advantage of Bobek's study is to suggest that expectations about the place
of comparative materials within published judicial reasoning need to be adjusted to fit within the
paradigms and traditions of particular legal systems. Furthermore, Bobek also forces the reader to
rethink the place that comparative arguments might reasonably be expected to play in any legal
system. Such arguments will not be decisive on their own in leading courts to depart from the
solutions which internal sources would justify. But that does not mean that they are insignificant.
The first valuable contribution that Bobek makes is to clarify what counts as a 'comparative'
argument. He distinguishes between 'mandatory' arguments, eg the application of a foreign system
in private international law or in application of a treaty, and 'non-mandatory' arguments, where the
judge has discretion what to cite. Judges are seeking inspiration, not authoritative reasons, and so
the category of non-mandatory arguments constitutes the focus of his research. Mere citation is not
comparison. Citation can be a mere adornment to a judicial argument, or a polite acknowledgement
of the work of counsel or judicial assistants. Bobek is concerned to focus on situations in which
there is sufficient engagement with the arguments of a foreign legal system that it constitutes one of
the reasons for the instant court's decision. Now Bobek rightly points out that this is quite difficult
to research. First, the articulation of reasons for decisions is more elaborate in some systems than in
others. If the comparative reasons are not essential, but supportive (as Bobek convincingly
explains), then they might well be omitted in a system whose judgments focus only on necessary
reasons for decisions. Secondly, practical considerations affect whether a court can really make use
of these reasons. Do the deciding judges have time to look at the materials or to understand their
legal context? Are not judges likely to be criticized for 'cherry-picking' in their choice of material
from another system? In even supreme courts with a very large throughput of decisions, the
discussion of ancillary reasons for decisions is a luxury. Thirdly, evidence is only readily available
about 'institutional' reasons, ones provided within judgments or formal preparatory materials.
Bobek helpfully identifies the importance of transnational judicial networks (more fully explained
by Monica Claes and Maartje de Visser) as vectors of influence, but it is hard to detect their
influence. Rather, he demonstrates the importance of scholarly legal writing as an important
intermediary. This saves judicial research time; but, more importantly, it provides reassurance that
a particular foreign case or outcome is soundly based in the other system and can be explained in
relation to other parts of the legal system. So judges will rely on scholarly works, rather than
researching or citing original foreign sources.
Bobek's second valuable contribution is to explain why judges resort to foreign legal arguments.
Legal systems may be 'dogmatically closed' (197) at particular times for political reasons, or
because judges are not supposed to play a creative role, or simply because the kinds of gaps in the
legal system do not lend themselves to the worthwhile use of this material. But when legal systems
are in flux or where significant gaps appear, then the use of comparative law becomes more
frequent. Bobek demonstrates that there is no fixed pattern of using comparative materials in legal
systems-their use changes over time and circumstances.
Bobek contributes distinctively to the existing literature by his case studies of legal systems.
He studies two blocks of systems. On the one hand, England, France and Germany are studied
[ICLQ vol 63, July 2014 pp 777-784]
doi: 10. 101 7/S002058931400027X](ViewImageLocal?handle=hein.journals/incolq63&div=42&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Comparative Reasoning in European Supreme Courts, by Michael Bobek
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most