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10 J. Comp. L. 498 (2015)
Michal Bobek: Comparative Reasoning in European Supreme Courts

handle is hein.journals/jrnatila10 and id is 812 raw text is: Reviews REVIEWS BARRIE LAWRENCE NATHAN Michal Bobek: Comparative Reasoning in European Supreme Courts, Oxford: Oxford University Press, 2013, ix +330pp, ISBN 978-0-19-968038-2, £50 H/BK When I saw the title of this book I thought that the book would examine the manner in which Supreme Courts in different countries in Europe approach the reasoning in their judgments. That is an issue touched upon in the book but predominantly the book looks at the use by courts of comparative law in reaching their decisions. There has been a great growth in literature in recent years examining this phenomenon. Bobek limits this study to the use of comparative law in supreme courts. He relates it to 5 jurisdictions: England and Wales, France, Germany, the Czech Republic and Slovakia. The book is in three parts; the first part, entitled The Structure, examines the background to the use of foreign law in courts. The second part, entitled The Practice, relates what happens in the five jurisdictions. The third part, entitled The Appraisal, aims 'to offer a theoretical common denominator for the practice of the systems studied'. (p 5) The opening chapter looks at the debate about such use of comparative law. It is not an overview of recent literature. Instead Bobek seeks to challenge two assumptions of recent literature, namely that the use by courts of comparative law is a new phenomenon and secondly that such use is on the rise. Historically, he says, there is nothing new about this approach. In early mediaeval times, before the birth of the nation state, the courts of various countries were quite willing to look at the way in which the courts of other countries dealt with particular legal problems. There was much more fluidity in legal systems, which did not derive their law from a central authority. There was in existence a ius commune. This changed with the codification of law in continental countries which took place in the late 18th and early 19th centuries. Lawyers and judges were concerned almost exclusively with the law in their own jurisdiction. Even then, however, comparative law still exercised an influence, not so much on lawyers and judges, but rather on legislatures in framing their laws. As to the question of whether this influence is growing, Bobek makes the somewhat unhelpful analysis that 'In some legal systems, the use of comparative reasoning might currently be rising. In others, however, the quantity of comparative inspiration remains roughly the same. In yet others, it may be in decline.' (p 14) He regards the English legal system as the only one where there is a definite rise, but more so in the use of comparison with other common law countries, than in comparison with civil law systems. The decisions of other common law countries receive more respect and attention than when there was a hierarchy of courts culminating in the Judicial Committee of the Privy Council. Bobek divides the uses of foreign law into three main categories: mandatory, advisable and voluntary. 'Mandatory' refers to the situation where the court is obliged to refer to 498 JCL 10:2

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