This chapter offers an assessment of judicial fragmentation in international human rights law. The first part of the chapter presents a comparative analysis of the case-law of the three regional systems and the UN Human Rights Committee on rights that are the highly susceptible to trigger fragmentation, either for the relevance of religious, cultural and political concerns or for the vagueness of some terms in the norms’ provisions that could possibly allow very different interpretations. As this analysis shows a substantial convergence or absence of fragmentation, the second part of the chapter focuses on the detailed analysis of the few cases of judicial fragmentation identified, exploring their features in depth. They include case-law on freedom to wear religious attire, indigenous rights and the right to marry for same-sex couples.

Common Law and Civil Law can in simplification be regarded as contrary legal systems: on the one hand, case law developed from concrete judicial decisions; on the other hand, statutory law is interpreted by legal scholars. In Germany however, the upcoming obligation to motivate judgments around 1800 initiated a new phase, according to John Dawson “Germany’s Case-Law Revolution". The judicial duty to justify every single decision towards the litigants not only changed the courts’ everyday work, but enabled the whole profession to access detailed information about tried cases. New law reports reflected the jurisdiction of the various regions. From 1847 onwards ‘Seuffert’s Archiv’, the most influential collection, reprinted numerous chosen decisions of the highest regional courts making for a nationwide readership. The use of reasons in Seuffert’s collection and its further utilisation in leading textbooks generated new authorities in legal matters. This insight raises fundamental issues about Germany’s 19th century’s legal history: the unification of national law in a period without a civil code, the relation between abstract law and concrete decisions as well as the overlap of legal practice and scholarship. Surprisingly, until now, scholars have paid little attention to how this worked in practice. How did courts and collections argue with concrete cases decided in the past? In suggesting one approach to answer this question, the paper compares four different versions of the same case from a file to the collection. First of all, a single judge gave his opinion in a report. Secondly, the committee of judges based its reasoned judgment on the report. Thirdly, the reasons were shortened for a regional collection which printed it. Finally, ‘Seuffert’s Archiv’ published parts of this last version once again. The example given here reveals the degree to which prior cases predetermined future courts’ decisions.