Response to The Judge as Comparatist: Comparison in Public Law

Abstract

This article by Basil Markesinis and Jorg Fedtke may be a turning point. It will encourage generations of judges to try the path of comparative law. We may have here the beginning of an intellectual revolution. In the past, we had the following phenomena: Judges did not tend to rely on comparative law; lawyers did not cite comparative law to judges; law schools did not stress comparative law; scholars did not emphasize comparative law; judges did not tend to rely on comparative law; and so on. This vicious circle is coming to its end. Judges will start to rely on comparative law; lawyers will tend to cite it to judges; law schools will start teaching comparative law; scholars will be encouraged to research in comparative law; judges will rely more and more on comparative law. And one of the important tools in breaking the vicious circle is this article of Markesinis and Fedtke. In what will follow, I am summarizing my own experience in the use of comparative law in public law. I do hope it may encourage other judges to follow in this path, both in public law and in private law.