030410 KU European Legal Method I: How to Work with Precedents (2022W)

An (European) court has decided. Indeed, but what exactly was decided? What is the rule that shall be applied for the future? Most international or European legal systems today are, as to their genuine operation, rather precedent-based system. With limited or no comprehensive codifications within those systems to start with, relying on previous decisions rendered within the respective systems becomes a necessity in order to establish the law and to solve ongoing cases. Whether those previous decisions, handed down in Luxembourg, Strasbourg, the Hague or Geneva, are called “precedents”, “established case law”, or simply “previous decision-making practice” is certainly of some dogmatic interest. It nonetheless changes little in the need for future practitioners in whatever legal profession to reason with precedents.

This course introduces civilian lawyers into the world of precedent-based reasoning. It starts from the assumption that tends not to be acknowledged in some, including Austrian, continental legal systems: precedents do make law, certainly before the European Courts. It seeks to provide them with a basic methodological toolkit for reasoning with previous decisions, in particular in the European and international forum, which operates rather differently to the neat word of codified laws and statutory interpretation. Particular attention is paid to both systems of European law, EU law and the ECHR, underling and explaining the differences to national civilian systems.

The course topics include:
1/ What is a precedent? A comparative introduction into various judicial reasoning styles.
2/ The evolution and the operation of the common law precedent. Identifying a ratio. Following, narrowing, weakening, broadening, distinguishing, overruling a previous precedent.
3/ Reading and interpreting a decision of the Court of Justice.
4/ Case study I (Court of Justice).
5/ Reading and interpreting a decision of the European Court of Human Rights.
6/ Case Study II (European Court of Human Rights).
7/ Reasoning correctly with precedents: the checklist. The typical does and the don’ts.