ABSTRACT
This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.
TABLE OF CONTENTS
chapter |6 pages
Introduction
part I|73 pages
Supreme courts in the common law system
chapter 1|23 pages
The Supreme Court of the United States
chapter 3|23 pages
Precedents and case-based reasoning in the case law of the High Court of Australia1
part II|127 pages
Constitutional courts in the civil law system
chapter 4|23 pages
The role of precedents and case law in the jurisprudence of the German Federal Constitutional Court
chapter 5|12 pages
Precedents and case-based reasoning in the case law of the Hungarian Constitutional Court
chapter 6|20 pages
Precedents and case-based reasoning in the adjudications of the Italian Constitutional Court
chapter 7|24 pages
Precedents and case-based reasoning in constitutional adjudication
chapter 8|23 pages
Precedents and case-based reasoning in the case law of the Constitutional Tribunal of the Republic of Poland
chapter 9|23 pages
The role of precedents and case-based reasoning in the case law of the Romanian Constitutional Court
part III|42 pages
International courts in the European law system
part IV|26 pages
Comparative analysis