The Possibility of a European Judicial Culture 9789462743670, 9789462901131

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Elaine Mak

E r a s m u s

The Possibility of a European Judicial Culture

L a w

L e c t u r e s

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The Possibility of a European Judicial Culture

The Possibility of a European Judicial Culture Inaugural Lecture for the Chair of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law, Erasmus University Rotterdam, delivered on 21 November 2014 by Prof. dr. Elaine Mak

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ISBN 978-94-6290-113-1 ISBN 978-94-6274-367-0 (E-book) NUR 823 © 2015 Elaine Mak | Eleven International Publishing This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Table of Contents

1 Introduction

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2 Courts and European challenges

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3 A new perspective on the study of public law

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4 A theory of judicial functioning in Europe

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5 The way forward

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6 Words of thanks

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7 Dear Rector Magnificus, dear students, colleagues, friends and family 1.

Introduction

Can lawyers and judges in European countries do their work on the basis of shared concepts and solutions regarding questions of law, rights and justice? In other words: can ‘a true European judicial culture’ be achieved? This question relates to an ambition presented in April 2010 by Viviane Reding, then Vice-President of the European Commission responsible for Justice, Fundamental Rights and Citizenship. In a lecture held in Florence, the Commissioner signalled the step made in European legal integration with the entry into force of the Lisbon Treaty and the Charter of Fundamental Rights of the European Union (EU). She emphasised the importance of further developing and strengthening European law, in order to effectively protect the rights of citizens and to ‘put Europe’s economy back on track’.1 Reding observed that a European judicial culture is needed, ‘embracing all aspects of the law’ in order to overcome the problem of diversity between the concepts and legal solutions developed in EU member states. She argued that this culture ‘can only be created if the lawyers are taken on board: judges, legal practitioners, barristers, solicitors, law professors’.2 Reding then made the following statement: However, lawyers are, as you all know, rather conservative people. They will prefer to stick instinctively to the traditional concepts of their national legal systems. They will not easily want to recognise the concepts familiar to the lawyers in the neighbouring country, let alone trusting the decisions of a court in another EU Member State. In terms of legal traditions and concepts, Europe is a continent still coined very much by diversity, and not by uniformity.3

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V. Reding, ‘A European Law Institute: An Important Milestone for an Ever Closer Union of Law, Rights and Justice’ (speech at the European University Institute, Florence, 10 April 2010), available at europa.eu. The European Law Institute (ELI) was established in June 2011 as an ‘independent organisation [which] aims to improve the quality of European law, understood in the broadest sense’. According to its mission statement, the ELI ‘seeks to initiate, conduct and facilitate research, to make recommendations, and to provide practical guidance in the field of European legal development’ (www.europeanlawinstitute.eu). Ibid. Ibid.

8 This seems a rather pessimistic statement about the attitudes of lawyers towards European law and about their attitudes towards the influence of foreign law in national legal systems more generally. Indeed, research conducted by myself and by others suggests that the approaches of judges with regard to European and foreign legal sources vary considerably between individuals.4 Identified approaches of judges represent conservative feelings or opinions regarding the judicial role, but also more open-minded engagement with foreign sources and support of the convergence of legal systems across national borders.5 It is not my aim to discredit Reding’s observation out of hand. She might well be right in noting that a significant part of judges, lawyers and law professors in European member states hold reservations with regard to further legal integration in Europe.6 However, if we agree that such an important part of the achievement of a European area of law, rights and justice is connected to the approaches of legal professionals, we might do well to spend more time on the critical and methodological analysis of their involvement. Attention for this question is required because of the translation of Reding’s ambitions for a ‘European judicial culture’ into current EU policies aimed at enhancing mutual trust and recognition between EU member states. An example concerns the development of judicial training programmes to support the cooperation between EU member states in civil and criminal matters.7 Also, the standardisation of procedures and documents has been made a policy objective in order to improve the recognition of judgments between member states.8 My reflection in this lecture will focus on the changing role of courts and judges in this evolving European context. The outline of the presentation is as follows. Firstly, I will take a closer look at the current challenges for judiciaries in Europe. In this respect, focus is on the EU (28 member states, 4

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E. Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts, Oxford: Hart Publishing 2013; U. Jaremba, National Judges as EU Law Judges: The Polish Civil Law System, Leiden: Brill 2014. See the typology of judicial postures towards the transnational legal context, developed by V.C. Jackson, Constitutional Engagement in a Transnational Era, Oxford: Oxford University Press 2009. Jackson distinguishes between postures of resistance, convergence and engagement. It might be interesting to know that Reding is not a lawyer herself. She holds a PhD in Human Sciences from the Sorbonne (information retrieved from www.europarl.europa.eu). H.J. van Harten, ‘Who’s Afraid of a True European Judicial Culture? On Judicial Training, Pluralism and National Autonomy’, Review of European Administrative Law (REALaw), 2012, 2, pp. 131-152. On harmonisation in the field of civil litigation, see X.E. Kramer and C.H. van Rhee (eds.), Civil Litigation in a Globalising World, The Hague: T.M.C. Asser Press 2012.

9 supranational law with direct effect in member states) as well as on the Council of Europe (47 member states, European Convention on Human Rights as main international treaty). The supranational legal order of the EU and the legal framework of the ECHR and case law of the European Court of Human Rights (ECtHR) are connected through the Charter of Fundamental Rights of the EU, the participation of all EU member states in the ECHR, and the possibility of the EU to become a contracting party of the ECHR.9 The challenges for judiciaries, which I will describe, relate to legal and societal changes in the European context. Secondly, the lecture will consider the role of legal scholarship in studying these challenges. I will argue that legal scholars should combine legal analysis with the concepts, theories and methods of other academic disciplines in order to clarify the current developments regarding European judiciaries and to provide guidance for the future. Thirdly, I will present the specific concepts and methods which can be used to construct and test a theory on judicial functioning in present-day Europe. In the concluding remarks, I will briefly reflect on the implications of my argument for the future of legal scholarship and legal education and on the attainability of a ‘true European judicial culture’ as envisaged by the European Commission.

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The Court of Justice of the EU (CJEU) has issued a very critical ruling on the compatibility of the draft agreement regarding the EU’s accession to the ECHR with the EU Treaties; see Opinion 2/13 of the Court, 18 December 2014, curia.europa.eu. See further inter alia C. Eckes, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’, Modern Law Review, 2013, 2, pp. 254-285; S.A. de Vries et al., ‘EU and ECHR: Conflict or Harmony?’ (special section), Utrecht Law Review, 2013, 1, pp. 78-192; V. Kosta, N. Skoutaris and V. Tzevelekos (eds.), The EU Accession to the ECHR, Oxford: Hart Publishing 2014.

10 2.

Courts and European challenges

A trend in present-day societies concerns the increase of legal issues with a ‘global’ aspect. Traditionally, many trans-boundary connections between legal systems have existed in the field of commerce and trade.10 In addition to this, international and supranational law increasingly deal with matters of public interest. The protection of human rights has been shaped in a large number of international, European and national legal rules and judgments since the Second World War, in a process which is sometimes called a ‘rights revolution’.11 In more recent years, global regulation has been developed regarding many other topics, such as food safety and the preservation of the environment.12 Legal aspects of these matters are taken up by national public authorities and also by international organisations, such as the United Nations. Furthermore, private regulation has gained more prominence, including ‘soft law’ standards developed by multinationals and standardisation bodies such as the International Organisation for Standardisation (ISO).13 Courts play a significant role in this context by ruling on legal questions brought before them in individual cases, which may relate to international and foreign legal norms and standards. However, the trend of globalisation of law-making and judicial decision-making is accompanied by a counter-trend. Globalisation has met with approaches of convergence and resistance in law-making institutions14 and with both support and criticism in national societies. Examples of resistance are visible, for example, in the rejection of the Treaty establishing a Constitution for Europe in referendums held in France and the Netherlands in 200515 and in recent

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A collection and commentary of relevant legal materials is provided by R. Goode, H. Kronke, E. McKendrick and J. Wool, Transnational Commercial Law: International Instruments and Commentary, 2nd edition, Oxford: Oxford University Press 2012. M. de S.-O.-l’E. Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe, Oxford: Oxford University Press 2009. See inter alia T. Havinga, F. van Waarden and D. Casey (eds.), The Changing Landscape of Food Governance: Public and Private Encounters, Cheltenham: Edward Elgar Publishing 2015; E. Fisher, B. Lange and E. Scotford, Environmental Law: Text, Cases and Materials, Oxford: Oxford University Press 2013. Concerning the legal authority of these standards, see F. Fontanelli, ‘ISO and Codex Standards and International Trade Law: What Gets Said Is Not What's Heard’, International and Comparative Law Quarterly, 2011, 4, pp. 895-932. Jackson (n. 5). See S. Binzer Hobolt and S. Brouard, ‘Contesting the European Union? Why the Dutch and the French Rejected the European Constitution’, Political Research Quarterly, 2011, 2, pp. 309-322.

11 criticism regarding the legitimacy of the ECtHR in the United Kingdom and the Netherlands.16 These dynamics of globalisation have raised questions concerning the role and functioning of institutions, including the courts.17 In Europe, we can identify two specific challenges for judiciaries, which concern the process of legal integration and the changing demands of society with regard to the functioning of courts and judges. 2.1 Challenge 1: Europe As a first challenge, judiciaries in Europe have to deal with increasing influence on judicial decision-making of rules and actors which are external to the national legal system. This trend has effects with regard to three aspects of the judicial function. a) In the Europeanised legal context, firstly, the origins of the applicable legal rules in domestic cases have changed. National judges in Europe increasingly are called on to apply European, and at times international, legal rules when judging cases.18 These developments have an impact on the role of national courts as guardians of the law in individual cases; they have to establish the balance between possibly overlapping or conflicting national and European legal rules, and safeguard the fundamental principles of the national legal system.19 b) Moreover, the national courts, in particular the highest courts, have to establish their position in relation to the European courts and courts in other national jurisdictions with regard to the application of shared legal rules.20 In 16 17

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See J. Gerards and J. Fleuren (eds.), Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case Law, Antwerp: Intersentia 2014. For a legal-theoretical analysis of the complexities of legal interactions in the globalised context, see inter alia P. Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders, Cambridge: Cambridge University Press 2012; N. Walker, Intimations of Global Law, Cambridge: Cambridge University Press 2014. M. Claes, The National Courts’ Mandate in the European Constitution, Oxford: Hart Publishing 2006; G. Martinico and O. Pollicino (eds.), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective, Groningen: Europa Law Publishing 2010; O.K. Fauchald and A. Nollkaemper, The Practice of International and National Courts and the (De-)Fragmentation of International Law, Oxford: Hart Publishing 2012. See inter alia Claes (n. 18); A. Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication, Oxford: Oxford University Press 2009; Gerards and Fleuren (n. 16). A.M. Slaughter, A. Stone Sweet and J.H.H. Weiler (eds.), The European Court and National Courts: Doctrine and Jurisprudence: Legal Change in Its Social Context, Oxford: Hart Publishing 1998; E. Bribosia, L. Scheek and A. Ubeda de Torres (eds.), L’Europe des cours: loyautés et resistances, Brussels: Bruylant 2010.

12 this regard, the European Courts have to establish their role and legitimacy as well: the CJEU as responsible for the uniform interpretation of EU law, the ECtHR as a backup for the guarantee of human rights protection in the contracting states.21 c) Finally, the trend of Europeanisation has urged national judiciaries to explore the possibilities of exchanging legal ideas, solutions for judicial organisation and standards for professional conduct, for example concerning values of independence and integrity, within the European legal context. This process corresponds with the development of a new role of courts in different jurisdictions as ‘partners in a common judicial enterprise’.22 Processes of harmonisation of legal rules and procedures, combined with the European Commission’s ambition to establish ‘a true European judicial culture’ amongst legal professionals,23 underline the need for national judges in EU member states to engage with these issues. 2.2 Challenge 2: Society As a second and related challenge, judiciaries in Europe have to deal with changing societal expectations concerning judicial decision-making. This development has a more universal nature – we can identify it in other systems around the world too. a) Generally, the relevance of national judiciaries is at stake under the effects of the globalisation and digitalisation of society. In this respect, for example, territoriality is becoming less important as a principle for judicial organisation.24 Parties might appreciate the availability of specialised knowledge in a single court more than the geographical proximity of general non-specialised courts. b) Standards of quality and efficiency are evolving.25 In this respect, courts are functioning in an increasing competition with private dispute settlement 21

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Regarding the CJEU, see inter alia K. Lenaerts, ‘Upholding Union Values in Times of Societal Change: The Role of the Court of Justice of the European Union’, lecture Durham European Law Institute, 17 February 2014 (www.dur.ac.uk). Regarding the ECtHR, see inter alia E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights, Cambridge: Cambridge University Press 2014. A.M. Slaughter, A New World Order, Princeton: Princeton University Press 2004, p. 68. COM(2011)551 final. E. Mak, ‘Balancing Territoriality and Functionality: Specialization as a Tool for Reforming Jurisdiction in the Netherlands, France and Germany’, International Journal for Court Administration, 2008, 2, pp. 2-9. H. Fix-Fierro, Courts, Justice and Efficiency: A Socio-Legal Study of Economic Rationality in Adjudication, Oxford: Hart Publishing 2003.

13 mechanisms, such as mediation and arbitration.26 Furthermore, standards of New Public Management have become more important in the organisation of court systems, emphasising the need for effectiveness, efficiency and a clientoriented approach.27 Judiciaries have to keep rethinking the balance of these values with the classic rule-of-law principles of independence and impartiality. c) Finally, political and societal claims for judicial accountability have increased.28 Critical debate about national judiciaries has occurred, particularly, with regard to incidental erroneous convictions in criminal cases, such as the Putten murder case and the case of Lucia de Berk in the Netherlands and the Kiszko case in the UK. In this light, demands have arisen for judgments and judicial behaviour to be consistent and understandable and to reflect a responsive approach to political and societal reactions.29 2.3 In quest of a new framework for judicial functioning How to respond to these challenges? When discussing about the topic of my lecture with a colleague a few weeks prior to the event, he questioned the ambition as such of achieving a shared European culture of judges. He made a comparison with football: Why would we want to create a European team? In response to that question, I would argue that for judiciaries, and also for other institutions with public power, the creation of a team is not the issue at stake in Europe. As the described developments clarify, judges are already part of a European team. National courts interact with European Courts and with each other. Judges participate in networks to discuss about substantive legal issues and about their professional values and to develop common procedures and standards.30 Traditions are evolving, as is illustrated for example by the move of the British Law Lords from the Houses of Parliament to their own Supreme Court building; this was a symbolic acknowledgment of the doctrine of separation of powers,31 which was already much 26 27

28 29 30 31

M. Barendrecht, ‘Courts, Competition and Innovation’, inaugural lecture, The Hague, 27 September 2011 (www.hiil.org). E. Mak, De rechtspraak in balans, Nijmegen: Wolf Legal Publishers 2007. See also G.Y. Ng, Quality of Judicial Organisation and Checks and Balances, Antwerp: Intersentia 2007; D. Piana, Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice, Farnham: Ashgate 2010. A. Garapon, La Raison du moindre État: le néolibéralisme et la justice, Paris: Odile Jacob 2010. The Right Hon. Sir I. Judge, ‘The Reflective Judge’, Rechtstreeks, 2007; B. van Delden, ‘The Judge in Reflective Mode’, Rechtstreeks, 2007 (www.rechtspraak.nl). See in more detail Mak (n. 4). The first President of the UK Supreme Court, Lord Phillips of Worth Matravers, said at the opening of the Court: ‘This is the last step in the separation of powers in this country’; see ‘UK Supreme Court Judges Sworn In’, BBC News, 1 October 2009 (news.bbc.co.uk). See also ‘Separation of Powers: Britain's Top Judges Leave Home’, The Economist, 1 October 2009.

14 more clearly visible in the organisation of government in most continentalEuropean countries. In this context, approaches in the courts and on the football field are only partly comparable. In sports, the objective of winning matches requires a competitive approach. Judicial approaches in the decision-making in cases, by contrast, are not one-dimensional but encompass two strategies. Judges might compete to claim their part in the development of national and European law. They might also cooperate with the aim of achieving a shared goal, such as legal uniformity, an equal level of human rights protection or timeliness and enforcement of judgments in all EU member states.32 Still, the sports metaphor can be elaborated to demonstrate the difficulties of team playing. Judges in Europe are all wearing different ‘shirts’, that is: robes of different design and colour. Moreover, there are no numbers on their backs. This makes it difficult to see which positions in the field are taken up by each of the players (that is: the judicial actors): goalkeeper, defender, forward, team leader? In legal terms, the question arises of how the functioning of judiciaries can be adapted to respond to the changing legal and societal context in Europe. What is the role of courts in Europe in the contemporary context? Which values for judicial functioning apply? How can difficulties related to the diversity between European states be overcome? Legal research can contribute to answering these questions. However, as I will argue next, it should develop new concepts and methods to do so.

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Concerning the influence of the reform on the practice of the judges, see The Right Hon. Lord Phillips of Worth Matravers, ‘The Birth and First Steps of the UK Supreme Court’, Cambridge Journal of International and Comparative Law, 2012, 2, pp. 9-12; A. Paterson, Final Judgment: The Last Law Lords and the Supreme Court, Oxford: Hart Publishing 2013. H.W. Micklitz, The Politics of Judicial Co-operation in the EU: Sunday Trading, Equal Treatment and Good Faith, Cambridge: Cambridge University Press 2005, pp. 11-13; L. Scheeck, ‘Competition, Conflict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks’, GARNET Working Paper 23/07. For further insights on the concepts of competition and cooperation and their role in other legal environments, see inter alia E. Lazega, The Collegial Phenomenon: The Social Mechanisms of Cooperation among Peers in a Corporate Law Partnership, Oxford: Oxford University Press 2001.

15 3.

A new perspective on the study of public law

Let me start here with an anecdote. A few weeks before this lecture, an interview with the Dean of the Law School of the University of Amsterdam and Professor of private law Edgar du Perron was published in the science supplement of a Dutch newspaper. Professor Du Perron was interviewed by his two sons of fifteen and ten years old. Fifteen-year old Philip asked the opening question: ‘What are you doing in the science supplement of the newspaper? I thought you were studying law.’33 This question provides us with a starting-point for a reflection on the nature of legal scholarship as well as on the required approach for conducting legal research on judiciaries in Europe. 3.1 A multidisciplinary approach Philip’s question reflects a definition in which ‘science’ refers to the natural sciences, such as physics and chemistry, and which excludes the humanities and social sciences, such as history, economics, political science and law. Taking up the debate with his sons, Edgar du Perron argues that law, like the natural sciences, studies a reality. However, this reality does not concern stars, planets and the human-independent laws of nature. The reality of law is that of a social order constructed by people, which can be changed by human beings and even disappear if societies cease to exist. In Du Perron’s view, we could say that Harry Potter or a famous painting like Rembrandt’s Nachtwacht forms part of this human reality as well, as they are human constructs.34 Still, legal rules are particular, as they have binding effects in society. Legal rules tell us what we can and cannot do and which obligations we have as subjects of a legal system.35 The classic aspects of the legal research approach consist in a study of relevant legislation, case law and academic literature. This approach is based on the interpretation of sources. It can clarify the formal framework of interaction of judges with other actors and the rules pertaining to judging within the European context. Sources to be studied then include national constitutions, laws and regulations on judicial organisation and judicial decision-making, as well as case law and scholarly writings regarding judicial functioning. Such an analysis of legal sources is able to clarify the internal perspective of judges and lawyers who interpret legal rules.36 33 34 35 36

B. van Toor, ‘Zonder mensen geen recht’, Parool, 11 November 2014. Ibid. H.L.A. Hart, The Concept of Law, 3rd edition, Oxford: Oxford University Press 2012. S. Taekema, ‘Relative Autonomy: A Characterisation of the Discipline of Law’, in: B. van Klink and S. Taekema (eds.), Law and Method, Tübingen: Mohr Siebeck 2011, p. 39.

16 However, a different approach is required in order to explain the rationale and functioning of legal systems and legal professionals in sociological, political or economic terms, that is: to see them from an external perspective.37 In order to benefit from this external perspective, legal research can incorporate insights from the humanities, such as philosophy and history. It is possible, for example, to explain the current emphasis on human rights protection in Europe on the basis of an historical analysis, which addresses the development of a theory of European legal culture by exiled law professors and historians who had witnessed the events of the Nazi era.38 Legal research can also learn from economics and the social sciences. The United States Supreme Court Justice Oliver Wendell Holmes observed, already at the end of the nineteenth century: ‘For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.’39 Indeed, multidisciplinary approaches have become popular, in particular in the United States (for example in the Empirical Legal Studies movement40) and in the United Kingdom (for example at the University of Oxford’s Centre for Socio-Legal Studies and at University College London’s Centre for Empirical Legal Studies41). In this multidisciplinary perspective, empirical research methods come into focus. 3.2 Empirical methods Empirical research can be defined in different ways. I will use this term here to refer to research which, through the use of specific research methods, observes social reality and develops or tests theories.42 This research can consist of experiments in a laboratory, but also includes surveys and field studies.43 It is descriptive in nature rather than normative and it makes use of quantitative empirical approaches, such as measuring based on surveys, counting, experiments and network studies, as well as qualitative approaches, 37 38

39 40 41 42

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Ibid., p. 40 (also discussing further nuances to the internal/external distinction). See the research conducted by Dr. Kaius Tuori and his team in the framework of the FP7 programme ‘Reinventing the Foundations of European Legal Culture 1934-1964’ (blogs.helsinki.fi/found-law). O.W. Holmes, ‘The Path of the Law’, Harvard Law Review, 1897, p. 457 and 461. See also C.E. Smith, ‘De ontdekking van een multiple discovery’, Ars Aequi 2014, 6, p. 414. For further information concerning the Journal and Society of Empirical Legal Studies, see www.lawschool.cornell.edu/sels. See www.cslsl.ox.ac.uk and www.ucl.ac.uk/laws/socio-legal. It can be observed that currently also a fair number of women are contributing to legal and multidisciplinary research. Compare K. van den Bos, Kijken naar het recht, inaugural lecture Utrecht, 17 October 2014, p. 2 (following the definition of John Thibaut, the founder of the Journal of Experimental Social Psychology). Ibid.

17 which provide insight into human behaviour based on interviews, observation and participation.44 .

Empirical methods represent a relatively new approach in legal research, in particular in the field of public law. It is true that public law has always been less purely doctrinal than other fields of law. Constitutional law and political theory are closely connected, as is visible in studies of political practices and constitutional history.45 An example concerning European judiciaries is Arthur Dyevre’s study of the response of national highest courts in EU member states to the integrationist jurisprudence of the Court of Justice of the EU.46 Dyevre’s analysis provides explanations for identified patterns of judicial response and tests these explanations on the basis of data regarding doctrinal positions and institutional constraints. However, he acknowledges that this perspective from legal-theory and political science is not able to provide insight into the attitudes of national judges towards the process of legal integration in Europe.47 In this respect, a social-scientific approach is required. Empirical methods can then be employed to obtain insight into the structure of institutions (‘offer fresh accounts of what our constitutional map looks like’), the operating of institutions, and accountability mechanisms.48 Concerning the research on judicial functioning, some multidisciplinary and empirical studies have been developed next to the legal doctrinal and comparative approaches and can be considered to have a clear added value. For example, studies inspired by organisation theory and political science have yielded insights into the influence of New Public Management on the organisation and functioning of courts.49 With regard to judicial decision-making, insights into the motives and approaches of judges have been gained through observation50 and surveys.51 Furthermore, quantitative studies on judicial decision-making have been conducted, demonstrating inter alia how often

44 45 46 47 48 49 50 51

Ibid., p. 3. S. Halliday, ‘Public Law’, in: C. Hunter (ed.), Integrating Socio-Legal Studies into the Law Curriculum, Basingstoke: Palgrave Macmillan 2012. A. Dyevre, ‘European Integration and National Courts: Defending Sovereignty under Institutional Constraints?’, European Constitutional Law Review, 2013, 1, pp. 139-168. Ibid., p. 153. Halliday (n. 45). See above, n. 27. P. Darbyshire, Sitting in Judgment: The Working Lives of Judges, Oxford: Hart Publishing 2011 (concerning judges in the UK). Jaremba (n. 4) (concerning Polish civil judges and EU law); B. Flanagan and S. Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’, International and Comparative Law Quarterly, 2011, 1, pp. 1-28 (concerning judicial citations to foreign law in common law supreme courts).

18 highest courts make use of comparative law and to which foreign legal sources they have recourse.52 The method of interviewing, more particularly, provides a fruitful way of learning about the views and approaches of judges regarding judicial decision-making, organisation and professional values.53 Judicial deliberations are not public and not all considerations made by individual judges are revealed in judgments. Moreover, publicly available information on court organisation and judicial ethics does not provide insight into the views of individual judges regarding these issues, which they only seldom express in public. The use of interviews as a research method makes it possible to gain insight into these matters and, in this way, helps ‘to clarify what it really means to be a judge’.54 In the last decades, various scholars have resorted to this method to study different aspects of the judicial function and practice. This method was employed, for example, to assess the questions of: activism at the Court of Justice of the EU;55 the impact of training and language competence on judicial application of EU law in Hungary;56 and the feminisation of the Portuguese judiciary.57 These analyses, as well as the projects conducted by Urszula Jaremba and by myself,58 demonstrate that qualitative research based on interviews with judges can inform societal debate and legal reforms addressing the role of courts in processes of legal evolution. 3.3 Team work Regarding research on judicial functioning in Europe, the activities of a team of researchers enable the development of a more comprehensive and systematic approach, involving different disciplines and the use of empirical methods.59 On the one hand, teamwork is required to study a variety of topics related to an overarching theme, such as the meaning of the judicial

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53 54 55 56 57 58 59

M. Gelter and M. Siems, ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe's Highest Courts’, Utrecht Law Review, 2012, 2, pp. 8899; T. Groppi and M.C. Ponthoreau (eds.), The Use of Foreign Precedents by Constitutional Judges, Oxford: Hart Publishing 2013. U. Jaremba and E. Mak, ‘Interviewing Judges in the Transnational Context’, Law and Method, 2014, 5. Ibid. I. Solanke, ‘“Stop the ECJ”? An Empirical Analysis of Activism at the Court’, European Law Journal, 2011, 6, pp. 764-784. A.F. Tatham, ‘The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary’, European Law Journal, 2012, 4, pp. 577-594. M. Duarte et al., ‘The Feminization of the Judiciary in Portugal’, Utrecht Law Review, 2014, 1, pp. 29-43. See above, n. 4. Compare J. Bell, ‘Researching Globalisation: Lessons from Judicial Citations’, Cambridge Journal of International and Comparative Law, 2014, 3, pp. 961-982, here p. 982.

19 role in present-day Europe. On the other hand, only a team of researchers will be able to bring together the required disciplinary perspectives for this research. A clear example of the added value of team work is visible in the combination of disciplines and research methods in the Highest Courts research project, which was facilitated by the Hague Institute for the Internationalisation of Law (HiiL) and of which the outcomes were published in Utrecht Law Review in 2012. The aim of this project was to describe and explain the development of decision-making practices in supreme courts and constitutional courts under the effects of globalisation, in particular regarding the judicial use of foreign law.60 The contributions of the involved researchers display a variety of approaches, including: – conceptual and sociological analyses of judicial networks;61 – a quantitative analysis of cross-citations between courts;62 – a qualitative analysis of the motives and working methods of judges regarding the use of foreign law;63 – legal-theoretical analyses concerning the authority of arguments from foreign law64 and concerning the possible democratising effects of transnational judicial dialogue;65 – a political science analysis concerning factors for the contextualisation of judicial dialogue;66 – a ‘law in context’ analysis of judicial leadership of the Dutch Supreme Court;67

60 61

62 63

64 65 66 67

A. Hol et al., ‘Highest Courts and Transnational Interaction’, Utrecht Law Review, 2012, 2. M. Claes and M. de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’, pp. 100-114; E. Lazega, ‘Mapping Judicial Dialogue across National Borders: An Exploratory Network Study of Learning from Lobbying among European Intellectual Property Judges’, pp. 115-128. Further perspectives from law and political science will be available in C. Dallara and D. Piana, Networking the Rule of Law: How Change Agents Reshape Judicial Governance in the EU, Farnham: Ashgate, forthcoming 2015. Gelter and Siems (n. 52) (focusing on highest courts in European jurisdictions). E. Mak, ‘Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices’, pp. 20-34 (presenting an analysis based on interviews with judges in the Supreme Courts of the UK and the Netherlands). A. Hol, ‘Editorial: Highest Courts and Transnational Interaction: Introductory and Concluding Remarks’, pp. 1-7; J. Bell, ‘The Argumentative Status of Foreign Legal Arguments’, pp. 8-19. E. Benvenisti and G.W. Downs, ‘The Democratizing Effects of Transjudicial Coordination’, pp. 158-171. D. Piana and C. Guarnieri, ‘Bringing the Outside Inside: Macro and Micro Factors to Put the Dialogue among Highest Courts into Its Right Context’, pp. 139-157. N. Huls, ‘The Ebb and Flow of Judicial Leadership in the Netherlands’, pp. 129-138.

20 – legal and comparative case studies concerning the use of foreign law in judicial decision-making in a specific legal system68 and regarding a specific legal issue.69 Concerning research on the development of the judicial function in the globalised legal context, a sound multidisciplinary legal research approach still needs to be developed further. According to John Bell, the systematic and thorough studies of ‘lone scholars’70 have helped to advance research regarding judicial citations to foreign law. The next step in researching legal globalisation should consist in ‘both coverage of a wide variety of countries and a variety of analyses, statistical, interview-based, and the reading of texts, and an understanding of the contexts out of which these materials are all arising’.71 This proposed research approach also has its limitations. In particular, it remains unclear how legal doctrine can be systematically reconstructed on the basis of arguments for critical evaluation and reform yielded by multidisciplinary research.72 Concerning the topic of courts and globalisation, socio-legal studies can contribute to the understanding of current developments, but these studies cannot provide answers to the question of what the content of ‘global law’ should be. These methodological difficulties and limitations need to be kept in mind when engaging in multidisciplinary legal research. Having outlined this multidisciplinary and empirical approach, we will next have a closer look at how it can be integrated in a research project on the European challenges for judiciaries. How can multidisciplinary legal research assist courts and judges to function in the interaction with European legal rules and actors and to respond to the expectations of present-day societies?

68 69 70 71 72

A. Lollini, ‘The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law’, pp. 55-87. I. Giesen, ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’, pp. 35-54 (presenting a comparison of judgments in the field of tort law). Bell (n. 59), p. 982, mentioning M. Bobek, Comparative Reasoning in European Supreme Courts, Oxford: Oxford University Press 2013; Mak (n. 4). Ibid. At Erasmus School of Law, Sanne Taekema and Wibren van der Burg are editing a special issue of Erasmus Law Review concerning ‘The Incorporation Problem in Interdisciplinary Legal Scholarship’ (forthcoming 2015).

21 4.

A theory of judicial functioning in Europe

To start with, the reconstruction of the judicial role, competences and ethics to meet the needs of contemporary societies in Europe requires an adequate theoretical framework. The theoretical building blocks can then be applied in a multidisciplinary legal and comparative analysis. Indeed, a comparison of legal systems in Europe makes it possible to better understand each system and its particularities. Furthermore, the comparison and its contextualisation can yield insights regarding reforms in some systems and regarding the possible convergence of all systems taken together. 4.1 Building blocks for a theory of judicial functioning in Europe In my view, the conceptual analysis of judicial functioning in Europe should combine a legal-theoretical perspective with insights from other disciplines: organisation theory, political science and legal philosophy. The concepts of ‘judicial leadership’, ‘(European) judicial culture’ and ‘constitutional (in-) flexibility’ are the points of reference in this regard. a) ‘Judicial leadership’, firstly, concerns the influence of courts on the application and development of the law as compared with the influence in this respect of other actors in the same legal and societal context.73 Interaction can take place in the framework of formal institutional relations, concerning the interpretation and application of binding rules and judgments, and through exchanges in judicial networks, concerning the exchange of ideas and ‘best practices’ which might be shaped into ‘soft law’ norms.74 An indepth analysis of this interaction is significant in order to obtain insights into the strategies and influence of courts in the European context and into the constraints on their exercise of power. Concerning institutional developments in Europe, the concept of ‘judicial leadership’ can clarify the influence of courts, in particular supreme courts and constitutional courts, on the uniform interpretation of the law, the protection of fundamental rights and the development of the law. The leadership of specific courts can be analysed in terms of: 1) the role of these courts as consolidating and creating norms;75 and 2) their persuasive influence in

73 74 75

P. Selznick, Leadership in Administration: A Sociological Interpretation, Berkeley: University of California Press 1957; Huls (n. 67), Paterson (n. 31). See inter alia Mak (n. 4). M.A. Waters, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’, Columbia Law Review, 2007, pp. 628-705.

22 ‘dialogues’ with other courts concerning substantive legal issues and matters of professional behaviour and organisation.76 Concerning the changing societal demands regarding the quality, efficiency and transparency of judicial decision-making, judicial leadership can be clarified through an analysis of: 1) the involvement of judges in institutional and organisational reforms; and 2) the interaction of judiciaries with political actors and private dispute settlement providers. In particular, the role of management bodies such as Councils for the Judiciary and the influence of court presidents are of interest in this regard.77 b) ‘Judicial culture’, secondly, is closely related to the broader concept of ‘legal culture’. It pertains to the values and principles which underlie the professional behaviour of judges, both with regard to the deciding of cases and with regard to professional conduct.78 In this regard, professional ideals of integrity, independence, responsibility and trust should be put in context.79 Diversity can be expected to exist between EU member states in light of national principles and views concerning the judicial function and the status of EU law as well as national societal values.80 For example: Is a formal, dogmatic approach to judging dominant (as in many post-communist states in Central and Eastern Europe) or a more pragmatic substance-oriented approach?81 How is the role of the judiciary in law development perceived in relation to the political powers at the national level and in relation to the institutions of the EU?82 Research regarding the development of judicial culture should address the meaning of professionalism in specific contexts. Which values for, and 76 77

78

79

80 81 82

Slaughter (n. 22); Torres Pérez (n. 19); Jackson (n. 5). See for example M. Bobek and D. Kosar, ‘Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe’, German Law Journal, 2014, 7, pp. 1257-1292; A. Seibert-Fohr (ed.), Judicial Independence in Transition, Heidelberg: Springer 2012. Concerning the concept of ‘legal culture’, see R. Michaels, ‘Legal Culture’, in: J. Basedow, K.J. Hopt, R. Zimmermann and A. Stier (eds.), The Max Planck Encyclopedia of European Private Law, Oxford: Oxford University Press 2012. See also M. Van Hoecke and M. Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, International and Comparative Law Quarterly, 1998, 3, pp. 495-536. J. Soeharno, The Integrity of the Judge: A Philosophical Inquiry, Farnham: Ashgate 2009; J.P. Terhechte, ‘Judicial Ethics for a Global Judiciary: How Judicial Networks Create Their Own Codes of Conduct’, German Law Journal, 2009, 4, pp. 501-514. A. Williams, The Ethos of Europe: Values, Law and Justice in the EU, Cambridge: Cambridge University Press 2010. M.W. Hesselink, ‘The New European Legal Culture: Ten Years On’, in G. Helleringer and K. Purnhagen (eds.), Towards a European Legal Culture, Oxford: Hart Publishing 2014. H.W. Micklitz and B. De Witte (eds.), The European Court of Justice and the Autonomy of the Member States, Antwerp: Intersentia 2012.

23 approaches to, ‘good’ judicial decision-making have developed in national societies and at the European level? To what extent are these similar and to what extent different? This analysis will be able to clarify to what extent the expression of national judicial values in legal rules and standards can be harmonised with regard to: 1) institutional power relations; 2) procedures; and 3) organisational measures (for example concerning the use of information technology). That is: the analysis will help to clarify to what extent ‘a true European judicial culture’ as favoured by the European Commission can be developed, inter alia through judicial training and the efforts of judicial networks regarding the further harmonisation of laws. c) The concept of ‘constitutional (in-)flexibility’, thirdly, enables the understanding of the development of judicial functioning over time in different societies within the normative framework for the organisation of these societies. This concept focuses on the Constitution, i.e. the basic legal norm, and its underlying conventions, which express the normative foundations of a legal system. These fundamental norms determine how societal changes, such as the demands of New Public Management, are integrated in the legal system.83 The openness to change is connected to the detail of constitutional provisions, the procedure for amendments to the Constitution, the development of constitutional norms through judicial interpretation (in particular by supreme courts and constitutional courts), and the influence of international and supranational law in domestic legal systems.84 An analysis in light of the concept of ‘constitutional (in-)flexibility’ can demonstrate how normative changes in the European context are integrated over time in the constitutional frameworks of member states. In this way, the development (or ‘evolution’85) of national systems, including national judicial cultures, under the effects of EU law and changing societal demands can be clarified. 4.2 Comparative legal and multidisciplinary research The comparative approach comes with its own methodological requirements, which concern comparability, representativeness, a proper use of sources, a structured approach to the analysis, and the explanation of similarities and

83

84 85

Concerning the concept of ‘constitutional conventions’, see W.I. Jennings, The Law and the Constitution, 2nd edition, London: University of London Press 1938; L.F.M. Verhey, ‘De constitutionele conventie: een blinde vlek in ons staatsrecht’, inaugural lecture Leiden, Deventer: Kluwer 2014. Mak (n. 4), chapter 2. P. Stein, Legal Evolution: The Story of an Idea, Cambridge: Cambridge University Press 2009.

24 differences.86 The following observations can be made with regard to the study of judicial functioning in Europe. The comparability of legal systems flows from their shared background as European liberal democracies. Taking into account the size of the research team, a selection should be made of representative legal systems, while keeping in mind the extent to which general conclusions can be drawn based on the outcomes of the research. Criteria for this selection concern the constitutional system, constitutional culture and level of rule-of-law development of legal systems. a) Regarding the constitutional system, firstly, the effects of transnational legal sources (here: EU law and the ECHR) at the national level depend on the constitutional implementing mechanism and the interpretative approach favoured by the national courts.87 The constraints imposed on judicial functioning by standards of quality, efficiency and transparency, too, depend on the constitutional expression of these standards.88 The characteristics of the constitutional system relate to the procedural aspects of ‘constitutional (in-) flexibility’. Comparative research, in this respect, should include national legal systems that represent the variety of existing constitutional systems in Europe, contrasting for example Germany’s strong protection of constitutional values with the Dutch more open constitution. b) With regard to constitutional culture, secondly, the approaches of courts and individual judges to changes, such as the increased influence of EU law and the changing societal demands on judiciaries, are related to national legal culture and personal attitudes as to what constitutes legitimate judicial functioning. General approaches of resistance, convergence or engagement with the transnational89 can be identified when comparing actors in systems which were traditionally ‘closed’ to transnational influences and systems which have taken a more ‘open’ approach.90 This characteristic of legal systems is connected with the concept of judicial culture and the substantive aspects of ‘constitutional (in-)flexibility’. The selection of legal systems for the comparison should sufficiently reflect this variety of cultures.

86 87 88 89 90

On the basics and current discussions regarding comparative legal methodology, see M. Siems, Comparative Law, Cambridge: Cambridge University Press 2014. Mak (n. 27). Ibid. Jackson (n. 5). Concerning the openness of national legal systems regarding EU law, see Claes (n. 18).

25 c) Regarding the level of rule-of-law development, differences between ‘old’ and ‘new’ liberal democracies in Europe exist based on the adequate functioning of the institutions of government and the protection of the fundamental rights of individuals. A relevant question is, for example, whether corruption can be fully banned out in the judiciaries in Central and Eastern European member states of the EU.91 Differences related to the level of ruleof-law development should be taken into account in the research, both with regard to the institutional interaction between courts and other actors and with regard to the adaptation of judicial values and approaches to presentday standards. A final challenge, for research and for the actual achievement of a European area of justice, concerns language. The European Community started out with six member states and four official languages: Dutch, French, German and Italian.92 With the current 28 member states and 24 official languages, the Union has become a more complicated object of research and a more complicated sphere for harmonisation of laws.93 Based on a comparative analysis, similarities and differences between legal systems can be mapped. The final step of the comparison is to find explanations for these outcomes, which will provide knowledge and lessons for the achievement of the research’s objective: the presentation of a theory concerning the judicial role, competences and ethics in Europe. The proposed research invites and even necessitates the use of a multidisciplinary, including empirical, research approach. After all, the comparative analysis needs contextualisation in order to explain the identified similarities and differences.94 For example, an analysis of judicial cultures can reveal which approaches to EU law are dominant in specific legal systems and how contextual factors such as economic and political developments influence these approaches. In this respect, socio-legal research can consist of a study of relevant policy documents, for example concerning institutional reforms of national judiciaries. Furthermore, interviews can be conducted with judges, court managers and policy makers in national legal systems and at the European level in order to obtain background information on specific developments, views and approaches.

91 92 93 94

Compare Seibert-Fohr (n. 77). ec.europa.eu/languages/policy/linguistic-diversity/official-languages-eu_en.htm. See K. McAuliffe, ‘Enlargement at the European Court of Justice: Law, Language and Translation’, European Law Journal, 2008, 6, pp. 806-818. Van Hoecke and Warrington (n. 78), p. 498.

26 5.

The way forward

This lecture started out with EU Commissioner Reding’s ambition to create ‘a true European judicial culture’. Based on a first outlook, I would argue that elements of shared practices in the functioning of judiciaries in Europe are visible and are developing. However, strong countertrends exist as well and other actors than courts are becoming more influential in dispute settlement and law making. Moreover, it remains to be seen whether a ‘true’ judicial culture can be established, if we take this to include harmonised laws, procedures and practices embedded in a shared view concerning the legal principles, professional values and most effective ways of operating of courts and judges. Possibilities for a European judicial culture of legal professionals exist in a context which balances the tendencies of resistance to globalisation and convergence of laws across national borders. However, between convergence and resistance, the road to ‘engagement’ of legal professionals based on mutual trust and recognition is still not so clearly delineated. In this lecture, I have outlined challenges for European judiciaries and ways for legal scholarship to study these challenges. In particular, I have highlighted the possibilities of a perspective from legal scholarship which integrates comparative and multidisciplinary, including empirical, aspects. This is only a part of the picture. Thematic expansion of research is possible to other rule-of-law institutions and to the interaction with private actors. Furthermore, the empirical study of public law can be included in legal education as well, in particular at the level of master and PhD studies.95 Taught subjects which can incorporate this perspective concern inter alia the ‘rule of law’ in the globalised legal context, (comparative) public law, legal ethics, and legal research methodology. I look forward to making my contribution in this regard in the coming years. Finally, a link can be made back to the reality of stories and their role in societies. Judges and legal scholars may not be able to imitate the magic of Harry Potter, the fictional character referred to by Edgar du Perron.96 However, several values are as fundamental to the work of judges as to the exercise of magic powers. In this respect, the story of Harry Potter provides us with examples of courage and cooperation. Furthermore, one core value in the story of Harry Potter is represented by his faithful companion, the owl Hedwig, and provides a meaningful point of reference for judges too. You will recognise it as being firmly rooted in European ideas about doing justice: it is the value of wisdom.

95 96

Compare B. Fauvarque-Cosson, ‘Restructuring Legal Education in Europe: The Necessity of Comparative and European Law’, Ars Aequi, 2014, 11, pp. 867-871. See the interview with Edgar Du Perron, mentioned above (n. 33) and the novels in the Harry Potter series by J.K. Rowling, published by Bloomsbury between 1997 and 2007.

27 6.

Words of thanks

Lingering for a moment longer in the domain of values, a truthful observation can be found in the work of Jean-Jacques Rousseau. He wrote: ‘What wisdom can you find that is greater than kindness?’97 In the spirit of this statement, I want to end this lecture with some words of thanks to all who have made it possible for me to stand here today and who have made my journey through life and through law worthwhile so far. I thank the Board of the Erasmus University and the Erasmus Trustfund for establishing this Endowed Chair and for my appointment. Many thanks to Dean Suzan Stoter and Vice-Dean Fabian Amtenbrink of Erasmus School of Law for their trust and support. I also thank them for creating an open and constructive environment for research, teaching and management in our law school. Further thanks are due to René van Swaaningen and Sey Lin van Munster, with whom I have worked together to establish the Erasmus Graduate School of Law. I feel honoured to be able to continue René’s work in directing EGSL and am glad that Sey Lin is still part of the team. Thanks to Karin van Wingerde and Brenda de Groot for joining us this year. I look forward to working together with you to continue providing a solid and stimulating setting for PhD research in law and criminology and develop new initiatives in this regard. I thank the PhD candidates and bachelor and master students at Erasmus School of Law for creating a lively, diverse and inspiring environment in research and teaching in Rotterdam. I also thank my colleagues of what is currently called the Department of Sociology, Theory and Methodology, of whom many have known me since my days as a student-assistant. In particular, thanks to Jeanne Gaakeer for being a great source of inspiration. Many thanks as well to the other colleagues at Erasmus School of Law and to the colleagues from other universities who have travelled to be here today. [After this, some words of thanks were addressed to friends and family.] Ik heb gezegd.

97

J.J. Rousseau, Emile: or Education, translated by B. Foxley, London: J.M. Dent and Sons, Ltd. 1911, Book II.