Constitutional Law and Precedent: International Perspectives on Case-Based Reasoning

by Monika Florczak-Wator (Editor)

Overview

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.

Product Details

ISBN-13:	9781032205878
Publisher:	Taylor & Francis
Publication date:	09/25/2023
Pages:	292
Product dimensions:	6.12(w) x 9.19(h) x (d)

About the Author

Monika Florczak-Wątor is a full professor at the Department of Constitutional Law of the Jagiellonian University in Krakow, a director of the Center for Interdisciplinary Constitutional Studies of the Jagiellonian University and director of the Interdisciplinary Program 'Society of the Future' at the Doctoral School in the Social Sciences of the Jagiellonian University, Poland.

Table of Contents

Introduction: On the Methodology of the Research on Case-Based Reasoning in Constitutional Adjudication

PART I: Supreme Courts in Common Law System

Chapter 1: United States of America

The Supreme Court of the United States: legitimate law-maker and constitutional interpreter

Chapter 2: Canada

The Supreme Court of Canada: The Road to Authority, Legitimacy, and Independence

Chapter 3: Australia

Precedents and Case-Based Reasoning in the Case-Law of The High Court of Australia

PART II: Constitutional Courts in Civil Law System

Chapter 4: Germany

The Role of Precedents and Case-Based Reasoning in the German Federal Constitutional Court

Chapter 5: Hungary

Precedents and Case-Based Reasoning in the Case-Law of the Hungarian Constitutional Court

Chapter 6: Italy

Precedents and Case-Based Reasoning in the Adjudications of the Italian Constitutional Court

Chapter 7: Latvia

Precedents and Case-Based Reasoning in Constitutional Adjudication: The Republic of Latvia

Chapter 8: Poland

Precedents and Case-Based Reasoning in the Case-Law of the Constitutional Tribunal of the Republic of Poland

Chapter 9: Romania

The Role of Precedents and Case-Based Reasoning in the Case-Law of the Romanian Constitutional Court

PART III: International Courts in European Law System

Chapter 10: Court of Justice of the European Union

Court of Justice of the European Union – ‘Stone-by-Stone’ Case-Based Reasoning

Chapter 11: European Court of Human Rights

Precedent in the System of the European Convention on Human Rights

PART IV: Comparative Analysis

Chapter 12: Conclusion

The Role of Case-Based Reasoning in Constitutional Adjudication: A Comparative Study

Index