
Contents
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1. The Legitimacy 1. The Legitimacy
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2. The Methodology 2. The Methodology
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2.1. The Challenges: Of Cherries and Misunderstandings 2.1. The Challenges: Of Cherries and Misunderstandings
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2.2. Blurred Methodology or Blurred Yardsticks? 2.2. Blurred Methodology or Blurred Yardsticks?
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3. The Purpose 3. The Purpose
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4. The Predictability 4. The Predictability
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13 Comparative Reasoning by Courts: Some Classical Points Revisited
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Published:August 2013
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Abstract
The chapter revisits four of the objections commonly raised against the judicial use of comparative inspiration: legitimacy, methodology, purpose, and predictability. It deals, first, with the question of legitimacy for judicial ‘travels abroad’. Secondly, the traditional challenges formulated in relation to the alleged lack of methodology for judicial comparisons, their selectivity, and utilitarian character, are critically discussed. It is suggested, thirdly, that there is nothing wrong with the methodology, but rather with the presumed aims and purposes of comparative inspiration in courts, which are then translated into incorrect yardsticks. Finally, the seemingly unpredictable patterns of comparative arguments when employed by courts are discussed. Can there be a theory of something one cannot in fact exactly foresee?
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