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SSRN Electronic Journal
Article . 2014 . Peer-reviewed
Data sources: Crossref
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Foreign Precedents in Judicial Argument: A Theoretical Account

Authors: S. Bertea; SARRA, CLAUDIO;

Foreign Precedents in Judicial Argument: A Theoretical Account

Abstract

Recourse to precedents in legal adjudication is a source of intriguing theoretical challenges and serious practical difficulties. That is especially so when we have to do not with domestic precedents but with foreign ones, that is, with decisions taken by foreign courts and international judicial institutions, particularly when there is no formal obligation for a court to resort to foreign law. Can a case decided by the judiciary of a different legal order — particularly if that case is remote and that legal order operates under different procedural rules and substantive laws — have any bearing on a dispute arising domestically here and now? Should such a foreign precedent be acknowledged to have any (formal) binding force on the case in question? How could the practice of following foreign precedents be justified? This paper is primary meant to lay the theoretical basis on which those questions can be addressed. The basis on which we proceed in answering those questions essentially lies in a theory of legal reasoning that, for lack of a better phrase, can be labelled a dialectical approach informed by standards of discursive rationality.

Countries
Italy, United Kingdom
Keywords

foreign precedent, legal reasoning, jurisprudence, 340, legal authority, dialectical rationality

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
1
Average
Average
Average
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bronze