The CJEU and Comparative law in the Creation of New Jurisprudential Principles. A Case of Judicial Manipulation?

Thomas Perroud (1, 2, 3, 4)

1 Alexander von Humboldt Foundation
2 CMB - Centre Marc Bloch
3 CERSA - Centre d'Études et de Recherches de Sciences Administratives et Politiques
4 CRED - Centre de Recherche en Economie et Droit

Comparative law is obviously not considered a source of law that a court can apply to resolve a dispute (except in the context of a conflict of laws). In the common law world, conversely, courts can absolutely draw inspiration from a foreign solution, because it is not about the source, but about resolving a specific dispute, on the basis of facts. Thus, solutions are borrowed freely, although it is true that this is mostly the case in private law. In these legal systems, there is nothing that prevents transplants.

Domaines: Droit

Thomas Perroud. The CJEU and Comparative law in the Creation of New Jurisprudential Principles. A Case of Judicial Manipulation?. A tribute to Professor Patrick Birkinshaw, inPress. ⟨hal-03818337⟩