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Comparative Reasoning in European Supreme Courts$
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Michal Bobek

Print publication date: 2013

Print ISBN-13: 9780199680382

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199680382.001.0001

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(p.97) 6 France
Comparative Reasoning in European Supreme Courts

Michal Bobek

Oxford University Press

Assessing French theory and practice of the use of comparative arguments by courts, in particular by the three French highest courts, the Conseil constitutionnel, the Cour de cassation, and the Conseil d´Etat, the chapter suggests that in spite of not being visible on the surface, there is comparative exchange going on. For reasons peculiar to the legal and judicial tradition, such an exchange does, however, take on particular form. First, it is not openly displayed. Comparative reasoning in courts is primarily used as a tool of internal debates, not as an instrument for external justification. Secondly, because of the historical constitutional balance within the legal system, comparative law has traditionally been seen as a matter for the legislator and legal scholarship, not for the courts.

Keywords:   France, Conseil constitutionnel, Cour de cassation, Conseil d´Etat, bifurcation, judicial style, exegesis, libre recherche scientific, gaps, dynamic approach

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