Comparative Law as an Element of Reasoning

Abstract

There is still no communis opinio on the inclusion of comparative law as an element of reasoning in judicial decisions. There is no accepted plurality of methods which also includes comparative law in the traditional canons of historical, grammatical, systematic and teleological interpretation of judicial decisions. However, since the mid twentieth century, there has been growing internationalisation of case-law and jurisprudence as well as an increasing cross-border dimension to the search for internationally acceptable and just solutions. It is even sometimes claimed that we are in a ‘century of comparative law’. This trend involves taking account of the legal system and practice of other countries, but, in that regard, the courts do not march in step with science. Although at international level, in the extensive body of case-law, a comparative interpretation is still the exception rather than the rule, the decision-making practice of the courts of individual European States demonstrates an increasing willingness to rank comparative law amongst the traditional canons of interpretation. Reference should be made, in particular, to the Federal Supreme Court of Switzerland (Bundesgericht). Its affinity towards comparative law methods has even been described as a ‘conception universaliste’. The Swiss Federal Supreme Court has always been known to rely, in particular, on comparative law as a method of interpretation and has earned a reputation for taking the greatest account of comparative law when compared to international standards of national courts at final instance. In BGE 126 III 129 (138), the Swiss Federal Supreme Court even stated that ‘particularly in the event of conventional cross-border legal relations […], a proper determination of the law and therefore judicial gap-filling is not possible without a comparative law basis’. This sentence is more significant than it seems at first glance: comparative law plays a crucial role in the decision-making practice of the Swiss Federal Supreme Court in a very important area of commercial law. Kadner Graziano reports that an analysis of some 1500 judgments of the Swiss Federal Supreme Court from the 1990s revealed that the court refers to the external legal situation by way of comparison in approximately 10% of its judgments and, moreover, in judgments relating to liability, it makes a comparison in approximately 20% of the published decisions. In other continental European legal systems, one can observe only an occasional comparison with the laws of other countries. According to academia, the case-law of the Swiss Federal Supreme Court should be classified as recognising comparative law as an independent means of interpretation within the framework of a so-called ‘pragmatic plurality of methods’, but this is not the last word on the matter. Looking more broadly at the topic, there exists a clear emphasis on comparative law in judicial decision-making practice. It is reported from the Anglo-American legal sphere that constitutional courts are increasingly relying on the comparative method as a source of inspiration, and comparative law is by no means restricted to private law. In Austria, the Constitutional Court (Verfassungsgerichtshof) has had recourse to constitutional comparison on basis of the unstated presumption of its fundamental admissibility and effectiveness as an important source of potential knowledge.