
Published online:
26 September 2013
Published in print:
08 August 2013
Online ISBN:
9780191760280
Print ISBN:
9780199680382
Contents
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1. Judicial Ideologies and Judicial Decision-making 1. Judicial Ideologies and Judicial Decision-making
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2. The Need for Extra-systemic Inspiration 2. The Need for Extra-systemic Inspiration
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2.1. Gaps in Law 2.1. Gaps in Law
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2.2. Societal Change 2.2. Societal Change
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3. Judges as Legislators 3. Judges as Legislators
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4. The (Positivistic) Limits of Comparative Reasoning by Courts 4. The (Positivistic) Limits of Comparative Reasoning by Courts
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4.1. Persuasive, never Binding 4.1. Persuasive, never Binding
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4.2. Subsidiary, never Controlling 4.2. Subsidiary, never Controlling
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4.3. Additional, never Free-standing 4.3. Additional, never Free-standing
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4.4. Defendable and Selective, not Exhaustive 4.4. Defendable and Selective, not Exhaustive
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5. Summary: Of Old and New Hats 5. Summary: Of Old and New Hats
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Chapter
11 Comparative Reasoning by Courts: The Theoretical Playing Field
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Pages
203–219
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Published:August 2013
Cite
Bobek, Michal, 'Comparative Reasoning by Courts: The Theoretical Playing Field', Comparative Reasoning in European Supreme Courts (Oxford , 2013; online edn, Oxford Academic, 26 Sept. 2013), https://doi.org/10.1093/acprof:oso/9780199680382.003.0012, accessed 28 Apr. 2025.
Abstract
The chapter focuses on the theoretical underpinning of the use of comparative arguments in courts. It represents a synthesis of the various national theoretical approaches outlined in the second part of this book. The aim is to reconstruct a minimalist positivistic vision of the role and the legitimacy of comparative arguments in judicial decision-making. Furthermore, it is also suggested that the use of comparative reasoning, at least in the form and to the extent currently carried out in the legal systems studied, is not only compatible with, but is also mandated by the existent mainstream positivistic theories.
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