The role of precedents and case-based reasoning in constitutional adjudication: A comparative study

Abstract

The chapter presents the final results of the research on precedents and case-based reasoning in constitutional adjudication that was conducted as part of this project. Comparative research on the constitutional jurisprudence of the supreme courts in the common law system, constitutional courts in the civil law system and European international courts leads to the conclusion that there is great diversity in the practice of referring to previous judicial decisions. Courts and tribunals most often refer to their own case law; hence, the argument from their own authority can be considered dominant in modern constitutional adjudication. To a lesser extent, decisions of national, foreign and international courts and tribunals are cited in constitutional cases. The lack of a coherent and rational methodology for applying precedents and case-based reasoning is undoubtedly common for all three categories of judicial authorities.