Tania Groppi

Bottom Up Globalisation? The Use of Foreign Precedents by Constitutional Courts

  • Abstract

Informations and abstract

Keywords: Cross-Judicial Fertilisation, Constitutional Adjudication of Law, Globalisation of Law.

The article deals with the use of foreign precedents by constitutional courts. In the last decade, this topic has emerged as a preferred area of study in constitutional law. The article briefly points out four aspects of this trend: a) the practice; b) the novelty; c) the risks; d) the benefits. After underlining that explicit citations are circumscribed to common law countries, the article considers that some degree of implicit influence nevertheless exists worldwide and that it represents a new aspect in constitutional law. For many reasons judges are the protagonists of the globalisation of law in particular due to the role they play at national level in the Constitutional State. The risks of this development (in terms of national sovereignty, judicial activism and legal certainty) may be minimised by the cautious behaviour of the Courts both in the use of foreign precedents (as persuasive authority) and in the selection of the countries they refer to (thus avoiding «cherry picking»).

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