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The law of the land

Duxbury, Neil (2015) The law of the land. Modern Law Review, 78 (1). pp. 26-54. ISSN 0026-7961

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Identification Number: 10.1111/1468-2230.12105

Abstract

This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about (notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against) national courts choosing to treat foreign precedents as persuasive authority. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way.

Item Type: Article
Official URL: http://onlinelibrary.wiley.com/journal/10.1111/%28...
Additional Information: © 2015 John Wiley & Sons, Inc.
Divisions: Law
Subjects: J Political Science > JX International law
K Law > K Law (General)
Sets: Departments > Law
Date Deposited: 26 Nov 2014 12:20
Last Modified: 20 Mar 2019 02:38
URI: http://eprints.lse.ac.uk/id/eprint/60264

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