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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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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 June 2021

France

France

Chapter:
(p.97) 6 France
Source:
Comparative Reasoning in European Supreme Courts
Author(s):

Michal Bobek

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199680382.003.0007

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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