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Whether or not judges use comparative arguments is determined by a complex interplay of a number of legal and extra-legal factors within each legal system. The chapter introduces and discusses a number of such factors, which influence the likelihood of the use of comparative reasoning within judicial decision-making at the national level. The factors are grouped into four areas: general, institutional, procedural, and human factors. The closing two sections of this chapter discuss two specific, domain-dependent issues: first, whether it makes any difference, for the likelihood of the use of comparative reasoning, if the dispute at hand pertains to the area of private law or public law. Secondly, the final section addresses the same question with respect to the area of constitutional adjudication and human rights.

This chapter argues, through an analysis of the history of the professional backgrounds of the Court of Justice, that the absence of a clear vision for the function and direction of the Court of Justice at the stage of selecting and appointing its judges results in the Court of Justice setting its own tasks for itself. These tasks invariably reflect the prevailing professional disposition of the Court at the time. To substantiate this argument, the chapter divides the history of the Court of Justice into four periods: the transitional period up until 1970; the subsequent period up until the ratification of the Maastricht Treaty; the period beyond that until the ratification of the Lisbon Treaty; and the period since the Lisbon Treaty. In each of the periods examined in turn, a correlation between the professional backgrounds of the judges at the Court at that time and the type of decisions the Court produces is outlined.

Tomás Finn’s chapter is concerned with the consideration that Donal Barrington, a judge and public intellectual, gave to the Constitution, the basic law of the country, and the balance its Articles struck with regard to relations between Church and State and Northern Ireland. It considers his vision for Ireland, how this changed and the extent to which he influenced attitudes towards the Constitution. Of particular interest is how from the 1950s to the 1970s his stance evolved on the Constitution and specifically on those Articles that related to moral issues and to the national question. The chapter concludes that Barrington’s role was to put forward ideas which he hoped would inform intellectual debate and persuade governmental institutions to adopt new policies.

By going beyond the mainstream normative political theoretical discussion of the legitimacy of European or international courts, this chapter suggests that international courts legitimize themselves in relation to several key environments, contingent on historical socio-political developments. It uses the evolution of the ECtHR as a case study. The chapter begins with a discussion of the proposed shift in analytical perspective, from analysing the normative category of legitimacy of international courts to a study of the ways in which international courts are legitimized by various legitimization strategies. Next, the chapter provides empirical evidence of the ways in which the approach can be deployed, exemplified primarily by the case of the ECtHR. The conclusion restates the argument and relates its implications to the way judges for the Strasbourg bench ought to be selected.