The volume presented is the follow up of the book, edited by Tania Groppi and Marie-Claire Ponthoreau, published in 2013, titled The Use of Foreign Precedents by Constitutional Judges (Hart Publishing). The previous book represented (and it still represents, up until now) the most comprehensive empirical study on the use of foreign case-law in constitutional interpretation. Groppi-Ponthoreau’s book was deeply rooted in the ‘golden age’ of comparative constitutional law, which started in the 1990s. For almost two decades, democratic transitions were accompanied by a ‘migration of constitutional ideas’ on a scale never seen before. The writing of new constitutions, the establishment of constitutional courts, the intensification of the influence of international and supranational organizations and courts, have led to a great flowering of comparative studies. In this context, special attention has been paid to the role of courts, as protagonists of the circulation of law, the use of ‘extra-systemic’ arguments, ie the reference, increasingly frequent, in domestic judgments to international or foreign law, including the decisions of foreign courts, has been especially highlighted. Groppi-Ponthoreau’s goal was to assess, beyond the vast amount of theoretical scholarship, the reality and true extent of transjudicial communication between courts by looking directly at the case law.
More than ten years later, a completely different trend compared to the 1990s did emerge. This is the era of ‘democratic regression’ which affects new and old democracies, resulting in a slide of many systems towards authoritarianism. Comparative constitutional law has been deeply impacted by such events. In most of the countries involved in these phenomena, the acquis of ‘global constitutionalism’ is explicitly rejected, in the name of a defence of sovereignty from external interference which translates into the invocation of ‘local specificities’, often disguised under the indefinite label of ‘constitutional identity’. However, this does not mean that the use of foreign law is rejected. On the contrary, this encourages forms of manipulation and decontextualization of foreign models and experiences, subservient to the justification of new non-democratic regimes: what we could defined as a ‘fake comparison’. In addition, there is no lack of novelties regarding studies on the circulation of case-law. These studies have benefited from the developments of empirical legal studies, which have flourished in comparative law over the last 10-15 years, facilitated by developments in information technologies.
The present book, as the previous one, is based on single-country studies, presenting an empirical analysis of the use of foreign precedents by constitutional judges in 31 jurisdictions. This book, while keeping the same perspective as the previous book, ie the focus on the common law/civil law cleavage, aims at presenting a more populated sample. Constitutional justice is a global phenomenon, and to fully capture the use of foreign precedents in constitutional adjudication, we need to include as many jurisdictions as possible, beyond the ‘usual suspects.’ As there are at least 122 constitutional jurisdictions in the world, it is impossible to cover all of them and some selection is always needed. In the present book, we tried to include countries from all the continents, with a special attention to some of the emerging jurisdictions of the Global South.
Ten years later, the practice of making explicit use of foreign precedents is still limited both quantitatively and qualitatively. This new research, the scope of which has been extended by almost doubling the number of courts analysed, confirms that the citation of foreign precedents by constitutional judges is still not a common practice. This new inquiry also confirms that dialogue between judges does not exist anywhere in the world, or at best only in certain parts of the world. The practice of citing foreign precedents is neither constant nor customary, even in jurisdictions belonging to the common law tradition. It is true that constitutional decisions in the common law tradition are no longer presented as monolithic blocks but as exchanges of arguments. They are therefore much more suitable for export and, above all, can better meet the needs of the importing judge, which go well beyond legal imitation.
Over the last ten years, there has been a downturn in the number of citations of foreign precedents, with even common law jurisdictions tending to cite less (exception of the Australian High Court). This slight decline should probably not be given too much weight, as the reasons for it remain complex, combining both an individual dimension (the weight of judges) and an institutional dimension (the weight of the court). In this respect, the Canadian case should be monitored. The sudden controversy over the use of foreign examples to interpret the Canadian Charter of Rights and Freedoms does not mean that citations have come to a halt. Quite the contrary, since the Canadian chapter notes an increase for the years 2020, 2021 and 2022. The resistance expressed in Québec inc. (2020) will perhaps have a quantitative and qualitative rebound effect in the future on the part of judges attached to comparative law (this also confirms that numbers don’t tell the whole story). On the other hand, some constitutional courts belonging to the civil law tradition have increased the number of citations (in particular, German Federal Constitutional Court). Thus, the overall picture is one of regular practice, albeit with variations. These variations are a source of uncertainty.
Judges continue to be bricoleurs and engage in cherry-picking. Uncertainty is also linked to changes in the composition of courts and the way judges work. Relying on foreign judgments remains a decision that is primarily personal and not reasoned. The cherry-picking of foreign cases to support certain arguments without in-depth knowledge of the context or the foreign jurisprudence cited has remained unchanged. The persuasive value of comparative reasoning seems limited when several chapters note that minority judges are significantly less likely to cite foreign precedents, even when the solutions they propose seem similar to those existing in other jurisdictions. We have to admit that a systematic use of foreign precedents would be a Herculean task.
Posted by Professor Marie-Claire Ponthoreau (University of Bordeaux)
British Association of Comparative Law 
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