Constitutional Law and Precedent: International Perspectives on Case-Based Reasoning

Abstract

Constitutional adjudication is a phenomenon that has developed through case- based reasoning. Courts and tribunals, when ruling on constitutional matters, not only take into account the applicable domestic and foreign legal regulations, but also judicial decisions that develop and supplement them. An argument based on the court’s own authority or on the authority of other courts, regardless of their national, foreign, or international character, is one of the most significant and persuasive modes of argumentation in current constitutional jurisprudence. Moreover, case-based reasoning enables courts to correct, supplement, and develop the law through its creative interpretation, frequently inspired by previ-ous judicial decisions. These latter judgments are sometimes regarded as binding precedents that determine the content of subsequent decisions in similar cases. This applies not only to common law countries, but also to civil law jurisdic- tions that do not have a system of formally binding precedents. In constitutional adjudication, the proper use of the jurisprudential heritage of various courts and tribunals is one of the most challenging issues that has long been the subject of comparative research.