Why Do Dutch and Uk Judges Cite Foreign Law?

Abstract

The author wishes to thank the judges who participated in the interviews and the members of the HiiL Highest Courts Research Group for their comments and suggestions concerning earlier drafts of this paper. The usual disclaimer applies. 1 From a legal perspective, 'globalisation' can be defined as the trend toward world domination of specific regimes; see H.P. Glenn, Legal Traditions of the World (Oxford 2007), p. 49. The emergence of transnational connections between courts has been referred to under many different names. In S. Muller & S. Richards (eds.), Highest Courts and Globalisation (The Hague 2010), the term 'judicial internationalisation' is used to capture the increased exchange of legal ideas and experiences between judges in different legal systems, a trend also referred to as 'transjudicialism, judicial dialogue, judicial cosmopolitanism, judicial globalisation, the migration of legal ideas, legal transplants'; see p. 4 of the Introduction by the editors. 6 See inter alia Markesinis & Fedtke, op.cit. note 5 above; M. Andenas & D. Fairgrieve (eds.), Tom Bingham and the Transformation of the Law: a Liber Amicorum (Oxford 2009). 7 It is assumed that global influences will most likely be found at this level of judicial decisionmaking. See Muller & Richards, op.cit. note 1 above.

Asymmetric cross-citations in private law: An empirical study of 28 supreme courts in the EU

“…61 With the increased prominence of European law in the past decades, it could be that the comparative ethos ingrained into the institutional DNA of the Supreme Court was simply extended to citations of other European supreme courts. 62 In this European context, UK Supreme Court judges have reported that the prestige of the cited court is an important determinant of their willingness to cite, 63 which also in part explains the distribution of citations we have discovered. There are also more tangible ways in which the internationalized and Europeanized nature of the UK's (and particularly England's) legal order has manifested.…”

“…In response to questions of why they cite foreign decisions, some UK Supreme Court judges have reported that they felt a sense of duty to explain to the parties why their arguments were rejected, as well as a sense of duty to openly cite a foreign court as a matter of courtesy if they have followed the foreign court's reasoning. 59 In a similar vein, the House of Lordsthe UK Supreme Court's predecessorhas historically been a comparative institution, with a long tradition of consulting and referencing decisions of many other common law courts. 60 Citing foreign decisions has been institutionally encouraged.…”

“…80 Extrajudicially, judges themselves have openly referred to opinions of advocates general as giving more of an 'insight into the background for the Court's reasoning.' 81 Indeed, the citations in the opinions are often quite thorough with citations to foreign courts in their original language (in particular those of the German, French, Belgium and UK supreme courts). Even though it is sometimes not entirely clear if a particular reference to a foreign court is decisive for the argument, such an approach reflects and confirms the general impression that Dutch judges and advocates general possess a certain linguistic prowess, enabling them to consult foreign doctrine in a variety of different languages.…”

Common Law Constitutionalism Through Methodology

“…Elaine Mak observing that "sources most often referred to come from Commonwealth legal systems and from the US legal system." 92 The very willingness of UK courts to invoke judicial decisions from other common law jurisdictions evinces some openness to learning from those countries. This suggests an acknowledgement that former colonies may have useful knowledge to impart to British institutions.…”

The use of Foreign Law by the High Court of Australia

“…Mak's surveys of UK and Dutch Supreme Court Justices confirm that, in addition to legal tradition and language, prestige is one of the three main factors that influences the use of foreign law by those courts. 77 Flanagan and Ahern's 2006 survey of 43 superior court judges from common law countries (including three High Court Justices) similarly observes that 'some judges use comparative material to earn the professional approval of "respected" foreign judges'. 78 Prestige is, to some extent, an observable factor in the High Court's practice of following foreign decisions but it is difficult to draw firm conclusions as the Justices seldom refer to the perceived prestige of the foreign legal system in their reasons.…”