Constructing Precedent through Practices of Borrowing

Newly established courts are presented with challenges in decision-making. Among these challenges is their relative lacuna of obvious judicial precedents from which they should draw upon in the judgments. This raises questions about how new courts go about constructing a new body of jurisprudence and the extent to which they borrow from external jurisprudence or other sources of law. The creation of new international courts in the 1990s and 2000s offers researchers opportunities to understand how courts build judicial precedent. In this paper, I consider the link between borrowing and construction of precedent. What shapes court’s decision to borrow, and from what sources do they borrow or not? To examine this question, I rely on original data of citation practices of three new international courts—the African Court of Human and Peoples’ Rights, the East African Court of Justice, and the Caribbean Court of Justice. The citation practices of these three courts speak to several key issues. First, the distinction between national sources of law and international sources of law sheds light on how new international courts legitimate their decisions by signally respect for national sovereignty while also interpreting and applying international obligations to fulfil their mandates. Second, courts can borrow binding and non-binding sources of law. This distinction relates to if and how courts build precedent with an eye toward constructing jurisprudence that is coherent with broader legal norms but that also accommodates its unique political and legal context. Last, the paper maps if and how these courts shift from borrowing of external sources to more active reliance on their own precedents and jurisprudence. Overall, this paper seeks to understand the considerations new courts take when constructing precedent and how practices of borrowing address them.