Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices

15 Pages Posted: 18 May 2012

See all articles by Elaine Mak

Elaine Mak

Utrecht University - Faculty of Law; Utrecht University

Date Written: May 10, 2012

Abstract

How do judges decide cases in a globalised legal context, characterised by the increased interconnections between legal systems and between actors in these legal systems? In this article, firstly, four types of variables (constitutional, institutional, organisational, and personal) which influence judicial practices are described, and it is shown how these variables shape the judicial decision-making of the highest courts in liberal-democratic legal systems. Secondly, the specific development of the use of foreign law in the Supreme Courts of the UK and the Netherlands is analysed in light of the identified variables. In this way, some general insights are provided into the development of judicial decision-making under the effects of globalisation, and it is made clear what the national highest courts can and may do in the specific context in which they are functioning.

Keywords: globalisation, highest courts, constitutional theory, judicial decision-making

Suggested Citation

Mak, Elaine, Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices (May 10, 2012). Utrecht Law Review, Vol. 8, No. 2, pp. 20-34, 2012, Available at SSRN: https://ssrn.com/abstract=2062369

Elaine Mak (Contact Author)

Utrecht University - Faculty of Law ( email )

Netherlands

Utrecht University ( email )

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