Ferrari, Guiseppe Franco (ed.): Judicial Cosmopolitanism. The Use of Foreign Law in Contemporary Constitutional Systems (2019)

AbstractThis article addresses the use of foreign law in constitutional adjudication. We draw on the ideas of wide reflective equilibrium and public reason in order to defend an engagement model of comparative adjudication. According to this model, the judicial use of foreign law is justified if it proceeds by testing and mutually adjusting the principles and rulings of our constitutional doctrines against reasonable alternatives, as represented by the principles and rulings of other reasonable doctrines. By this, a court points to a wide reflective equilibrium, justifying its own interpretations with reasonable arguments, i.e. arguments that are acceptable from the perspectives defined by other constitutional doctrines, as endorsed by other courts. The point of a judicial engagement of this sort is to work out an overlap between different, reasonable, doctrines in the judicial forum, as part of a liberal forum of public reason. Here, the exercise of public reason filters out the premises of comprehensive doctrines so as to leave us in the region of an overlapping consensus: a region of mid-level principles that can be shared, notwithstanding the fact of legal pluralism.

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Varia: American Foreign Law Association

The American Journal of Comparative Law ◽

10.1093/ajcl/7.4.653a ◽

1958 ◽

Vol 7 (4) ◽

pp. 653-653

Keyword(s):

Foreign Law

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DETERMINING ISSUES OF FOREIGN LAW

Trusts & Trustees ◽

10.1093/tandt/5.10.39 ◽

1999 ◽

Vol 5 (10) ◽

pp. 39-39

Keyword(s):

Foreign Law

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Comunicazioni e Studi. Vol. IX, 1957. Milan University, Institute of International and Foreign Law. Milan: Dott. A. Giuffré, 1958. pp. ii, 498. L. 3500.

The American Journal of International Law ◽

10.2307/2195777 ◽

1959 ◽

Vol 53 (4) ◽

pp. 979-980

Author(s):

Josef L. Kunz

Keyword(s):

Foreign Law

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The Attitude of the Common Law

The Cambridge Law Journal ◽

10.1017/s0008197300127588 ◽

1939 ◽

Vol 7 (1) ◽

pp. 81-84

Author(s):

H. C. Gutteridge

Keyword(s):

Common Law ◽

Short Note ◽

English Text ◽

Text Book ◽

Contractual Obligation ◽

Short Statement ◽

Foreign Law ◽

The Common

The English text-book writers have very little to say about conflicts in matters of quasi-contract. Dicey, who devotes only a short note to the question, is chiefly concerned with the problem of ‘classification’ and leaves it, otherwise, very much in the air. He refers in a footnote, without any discussion of its import, to a solitary case and gives no indication as to the rules which should, in his opinion, govern the matter. Westlake treats the question with more respect but with a lack of precision. He does not attempt any analysis of the different states of fact which may give rise to the problem in practice, nor does he discuss in any detail the rules to be applied. He confines himself to the statement that there can be little doubt that the proper law of a quasi-contractual obligation ought generally to be drawn from the place with which the act that occasions it has the most real connexion. Burge's Colonial and Foreign Law contains a somewhat obscure passage dealing with a very recondite aspect of the matter, but is otherwise confined to a short, statement of the views of certain Continental authors. Baty dismisses the question as being ‘comparatively unimportant’ Foote and Cheshire ignore the problem altogether, as also do the editors of the relevant title in the Hailsham edition of Halsbury's Laws of England.

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