The Cambridge Law Journal



FOREIGN LAW INSPIRING NATIONAL LAW. LESSONS FROM GREATOREX V. GREATOREX


Basil Markesinis a1
a1 Professor of Common Law and Civil Law at University College London; Jamail Regents Chair, University of Texas at Austin.

Abstract

The author focuses on the voluntary use by judge or counsel of foreign law and foreign legal ideas as a means of shaping national law when this is unclear, contradictory, or otherwise in need of reform, as distinct from the formal presentatin of foreign law through expert witnesses where such law has to be applied. The number of instances in which this kind of borrowing may happen must, of necessity, be limited. The problem is that foreign law is unlikely to come in a simple form, attractively packaged; and language is a major problem in judicial attempts to be inspired by a foreign idea if not to transplant the actual solution. This has led the author to advocate a more co-ordinated use of the different talents that judges, practitioners, and academics bring to the process of creating and interpreting law and to assist the process by provision, in the English language, of easily accessible accounts of relevant foreign material. The approach finds an excellent practical illustration in the judgment of the High Court in Greatorex v. Greatorex.