How and Why Do Law Courts Quote? Citations and References in Decisions of The Federal Constitutional Court (Bundesverfassungsgericht) and the Supreme Court of Canada
For their final judgments, judges often cite or refer to their own previous findings or decisions made by higher courts in the past. At the same time, they often draw an intertextual connection to academic texts on law, judgments made in other jurisdictions or even to literary texts. Quoting previous judgments basically corresponds to the logic of the juridical system. Judges show through references to their own previous findings or higher court judgments that their decision is a logical consequence of the established order and therefore consistent with the current jurisdiction. Judgments from other legal system or even literary texts, on the other hand, do not seem to hold any authority for an interpretation of the law. This project therefore seeks to find out for what purpose and rhetorical means judges use such citations. For the first four years, this investigation will restrict itself to the chosen courts and to two specific contexts of citation.
The project places its focus on two courts of law – the German Bundesverfassungsgericht (Federal Constitutional Court) and the Supreme Court of Canada. This selection shall reflect one prominent court as representative of the continental European legal system and one representative of the Anglo-American common law. This comparison is designed to allow finding differences and similarities in the way both courts refer to previous findings and judgments. The Bundesverfassungsgericht serves as a representative of continental Europe as one of the oldest and most influential law courts in Europe. The Canadian Supreme Court is also a long-established court within the common law jurisdiction that has shown a more open mind towards quotations from other legal systems than the US Supreme Court, for instance.
The analysis will focus on two main aspects: intertextual references to judgments made in other legal systems and intertextual references to literary texts. The former may relate to different national legal systems, but may also refer to subnational such as indigenous traditions of law. This poses the question what argumentative function the quotation or reference may serve, and how it relates the two different legal systems to one another epistemologically. The practice of referring to external literature, such as academic texts, specific case-texts or belles-lettres, i.e. any text that allows authoritative quotations, seems perfectly reasonable, but the PIs are particularly interested in the influence on the competence of the court. Therefore, the project takes a closer look at the specific usage of such external references, what their purpose is and how they are being instrumentalized. It also focuses on the influence these references have on the coherence of the judgment pronounced.
Such an analysis of references and quotations requires a theoretical framework as a well as a certain terminology, which both allow tracing the correlation of types and functions. This concerns linguistic and literary intertextuality studies especially, as its main subjects of analysis are the very nature of the quotation and methodologies of citations. Such disciplines investigate the transposition of textual elements or characteristics as well as the various relations between texts, topoi and genres. Intertextuality studies investigates relevant transformations these texts undergo through transposition. Therefore, both the changes through citations and references in the formal body of the text are relevant as well as the changing role the citation maintains in the meaning of the text. When it comes to texts that have an indubitably normative function, the question arises whether the citation does not only change the meaning, but maybe also the authority of a text. Comparing different types as well as genres of source texts shall demonstrate the particular importance of citations in judgments.