Should precedents bind or persuade? The pros & cons

The effect a past judicial decision produces over the legal system is a question of importance not only for public law but for law in general. Determining whether a past decision should bind or persuade future courts is a political rather than a legal choice: nothing in law’s nature requires a specific option. In this paper I identify the values the binding model of precedents seeks to uphold: inter alia, to protect legitimate expectations, equality before the law and stability to the legal system. I argue that though these are sound values, the binding model entails a means (stare decisis) disproportionate to its ends. It is disproportionate because it places a heavy burden on judges (ie. to adjudicate & give law, which are conceptually different activities, and I articulate why). This, in turn, may conflict with two fundamental values: the adjudicatory independence of judges and the principle of separation of powers. I argue why the persuasive model is a bettter solution

The Use of Comparative Law in the Practice of the Supreme Court of Canada: A Quest for Methodology

Constitutional courts worldwide increasingly rely on comparative constitutional jurisprudence to both frame and articulate their position on a given constitutional question. Beside the legitimacy question, critics mostly focus on the methodology problems: cherry-picking or even misuse of comparative law may endanger the whole function of comparative constitutional reasoning.
This paper gives an analytical overview of the case law of the Supreme Court of Canada, a ‘comparative constitutional powerhouse’ (Hirschl), from the very beginning until our days. By the textual and contextual analysis of all foreign law citations, it aims to identify patterns in the case law to understand the background, motivations, and forms of the use of comparative law. Finally, the paper makes steps to provide the judges with applicable methodological standpoints to enhance transparency in the comparative constitutional reasoning.

A menace in robes: judicial populism, democratic constitutionalism in jeopardy

The appeal to the people’s feelings or the “public opinion”, disregarding constitutional principles and rules, is something frequent in American – and now even in European – politics. The dissatisfaction with the political representation and the distrust and disillusionment with liberal democracy are triggering the rise of political populism. In Brazil, the populist discourse reached another branch: in the name of morality, judges of the Federal Supreme Court of Brazil ignore constitutional explicit rules and, allegedly, decide “fairly”. Using a language of exception, the Supreme Court dismantled constitutional parliamentary prerogatives: no freedom of speech, no freedom from arrest. Under a moralistic fury, judges are ignoring constitutional checks and balances and their distance from the democratic field. Using broadcast communication and social media, the members of Brazilian Federal Supreme Court are overtaking political leaders and presenting themselves as the Nation’s saviors.

A Theory of Precedent in Constitutional Interpretation in Singapore

Judicial precedents in constitutional law raise unique stare decisis considerations which have been the subject of a well-developed body of literature, especially in the context of US Supreme Court constitutional precedents. Yet, despite being a constitutional democracy with a common law heritage akin to the US, little attention has been paid in Singapore to the question of the proper judicial approach towards constitutional precedents, and little effort has been made to engage this significant body of literature. This paper aims to remedy these gaps – to discern the principles that Singapore judges have thus far applied in their considerations of constitutional precedents, to engage with the insights of US case law and academic commentary on the proper approach to stare decisis in constitutional law, and to synthesise these principles and insights into a useful framework that can guide and shape principled stare decisis analysis in Singapore constitutional law.

The Perils of Judicial Avoidance: on deciding not to decide and the Rule of Law

In today’s democracies, the importance and influence of constitutional decisions are indisputable. What sometimes comes across less visible is how influential courts also are when they avoid a decision. Judicial avoidance is a common practice all around the world. Jurisdictions use different techniques, at different moments, with a common aim: delaying a decision on the substance. This paper wants to explore the importance of providing a normative framework for judicial avoidance. It defends that the legitimacy of the courts will only be strengthened once these avoidance practices are also exercised in compatibility with the Rule of Law. For that, it will start by identifying the avoidance techniques used in different jurisdictions, but focusing mainly on the Brazilian Supreme Court. Then, the downsides of a pragmatic approach will be analyzed. In conclusion, the advantages of a normative approach will be fostered.

Judicial documents as a robust basis for judicial decision-making by China’s courts

This article is to examine why and how judicial documents have been playing an auxiliary but crucial role in adjudication by China’s courts. This leads to proposing a grey theory of judicial documents that explains why the judicial document, which exists in a grey area without an explicit legal basis, is suitable for China’s legal regime, and how it is able to be referred to effectively by judges in adjudication. Moreover, it investigates the extent to which the judicial document enables the court, under the dual leadership of the next higher level court and the local Party committee, to respond to the higher-up political authorities swiftly and efficiently, and in particular how this resolves subnational diversity and political differences between localities. Finally, given the CCP’s effort to build up an instrumentalist legal system, the judicial document has been able to adapt well to China’s authoritarian regime and has demonstrated great political resilience.