Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts 9781472561602, 9781849465540

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Acknowledgments This book is the final outcome of a post-doctoral project, enabled by a VENI grant from the Dutch Organisation for Scientific Research (NWO). The research was conducted between September 2008 and September 2011, and the final version of the manuscript was completed in May 2013. I am grateful for the help and support which I have received from many persons along the course of this project. Thanks are due in particular to: —

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the judges and Advocates-General who participated in the interviews, for taking an interest in the research project and for sharing their knowledge and wisdom with me, and the staff at the courts for helpful practical assistance; John Bell, Ton Hol, Andrea Lollini and Sam Muller, for involving me in the HiiL Highest Courts Project, and all members of the Highest Courts Research Group for sharing ideas and insights with me; Abdel Moussa and Nadia Ayrir, for excellent research assistance; everyone else who provided valuable feedback on the research and on draft versions of the book, especially Maurice Adams, Jacco Bomhoff, Ryan Gauthier, Anna Gerbrandy, Anne Meuwese and Fred Schauer, as well as the anonymous reviewer of the manuscript; the Centre for European Legal Studies at the University of Cambridge, the Georgetown University Law Center in Washington, DC, and the European University Institute in Fiesole, for allowing me to benefit from stimulating research environments; students in Rotterdam, and in summer courses in Greece and Suriname, for reflecting with me on the main issues in legal theory, (comparative) constitutional law, European law and international law, related to the topic of this book; my colleagues at the Department of Legal Theory at Erasmus School of Law, in the research programme ‘Rethinking the Rule of Law in an Era of Globalisation, Privatisation and Multiculturalisation’, and at the Erasmus Graduate School of Law, as well as the Board of Erasmus School of Law, for being supportive of my research and for providing a solid home base for my academic activities; Richard Hart, for taking an interest in this book at an early stage, and all at Hart Publishing for working with me on the publication of the book; Mónika Ambrus, Flor Avelino, Hanan Bakkali, Vanessa Barbé, Annette Busker, Corina Busker, Marjolein Busstra, Alexandra Danopoulos,

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Acknowledgments Annike Dwars, Wendy Guns, Kristin Henrard, Urszula Jaremba, Laetitia Laman, Bas Leeuw, Hanneke Luth, Anna Oehmichen, Alessio Pacces, Sandra Phlippen and Chara Vlachou, for being my friends; my family, especially my mother Anita, my sisters Chantal and Vanessa, and my brothers Joost and Constant, for loving and supporting me always.

I dedicate this book to the memory of my father, Ad Mak, whose love, humour and wisdom have contributed to making me the person I am today. The dedication and perseverance which he demonstrated in pursuing his dreams will remain an inspiration to me. Rotterdam, July 2013

Table of Cases International and European European Court of Human Rights Sunday Times v United Kingdom (1979–80) 2 EHHR 245 (ECtHR, 26 April 1979) ............................................................................... 204 Dudgeon v United Kingdom (1981) Series A no 45 (ECtHR, 22 October 1981) .......................................................................... 188 Kostovski v The Netherlands (1989) Series A no 166 (ECtHR, 20 November 1989) ...................................................................... 149 Procola v Luxembourg (1995) Series A no 326 (ECtHR, 28 September 1995) ......................................................................... 49 Kress v France [2001] VI ECHR (ECtHR, 7 June 2001) .................................... 117 Morris v United Kingdom [2002] I ECHR (ECtHR, 26 February 2002) ......................................................................... 164 Kleyn and others v The Netherlands [2003] VI ECHR (ECtHR, 6 May 2003) ............................................................................ 49, 149 Cooper v United Kingdom [2003] XII ECHR (ECtHR, 16 December 2003) ....................................................................... 164 Vergos v Greece App no 65501/01 (ECtHR, 24 September 2004) ....................................................................... 174 Hirst v United Kingdom (No 2) [2005] ECHR 681 (ECtHR, 6 October 2005) ............................................................................ 165 Salah Sheekh v The Netherlands App no 1948/04 (ECtHR, 11 January 2007) ........................................................................... 149 Salduz v Turkey App no 36391/02 (ECtHR, 27 November 2008) ..................................................................................... 149 Panovits v Cyprus App no 4268/04 (ECtHR, 11 December 2008) ...................................................................................... 173 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, 20 January 2009) .................................................... 165 Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (ECtHR, 14 September 2010) .................................. 110, 111, 208 Greens and MT v United Kingdom [2010] ECHR 1826 (ECtHR, 23 November 2010) ...................................................................... 166 MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011) ........................................................................... 174 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, 15 December 2011)................................................. 165

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European Union Court of Justice Case 26-62 Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 00003......................................................... 111, 146 Case 106-77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629i ................................................................. 146 Case 283-81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 03415 ............................................................. 71 Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and others [1990] ECR I-2433 .............................................. 143 Case C-402/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351 ........................................ 77, 179 Case C-3/09 Erotic Center BVBA v Belgium [2010] ECR I-02361 .................................................................................................... 71 Case C-137/09 Josemans v Maastricht (16 December 2010) .............................. 175 Case C-203/08 Betfair v Minister of Justice [2010] ECR I-04695 ........................ 74 Case C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator [2010] ECR I-04757 ............................................................... 74 Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and others (11 September 2012) ........................................... 176 Case C-295/10 Genovaite˙ Valcˇiukiene˙ and others v Pakruojo rajono savivaldybe˙ and others (22 September 2011) ....................................... 176 Court of First Instance Case T-315/01 Kadi v Council and Commission [2005] ECR II-03649 ................................................................................................... 77 International Court of Justice Avena and Other Mexican Nationals (Mexico v United States) [2004] ICJ Rep 12 (ICJ, 31 March 2004) ....................................................... 169

Domestic Canada Daniels v White and The Queen [1968] SCR 517 .............................................. 166 R v Oakes [1986] 1 SCR 103 ............................................................................. 199 National Corn Growers [1990] 2 SCR 1324 ...................................................... 166 R v Keegstra [1990] 3 SCR 697 ......................................................................... 145 Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211........................................................................................... 183

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Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 .................................. 183 Reference re Ng Extradition (Canada) [1991] 2 SCR 858 .................................. 183 R v Morgentaler [1993] 3 SCR 463.................................................................... 186 Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982 ..................................................................... 167 United States v Burns [2001] 1 SCR 283............................................................ 183 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3............................................................................................... 167 Harvard College v Canada (Commissioner of Patents) [2002] 4 SCR 45............................................................................................. 185 Solski (Tutor of) v Québec (Attorney General) [2005] 1 SCR 201 ...................................................................................................... 115 Mugesera v Canada (Minister of Citizenship and Integration) [2005] 2 SCR 100 ...................................................................................................... 168 Gosselin (Tutor of) v Québec (Attorney General) [2005] 1 SCR 238........................................................................................... 115 Canadian Western Bank v Alberta [2007] 2 SCR 3 ............................................ 224 R v Kang-Brown [2008] 1 SCR 456 ................................................................... 186 R v AM [2008] 1 SCR 569 ................................................................................. 186 Canada (Justice) v Khadr [2008] 2 SCR 125 ...................................................... 184 Grant v Torstar Corp [2009] SCR 640 ............................................................... 185 R v National Post [2010] SCC 16, [2010] 1 SCR 477 ........................................ 208 Reference Re Securities Act [2011] 3 SCR 837 ................................................... 224

France Cour de cassation Société Cafés Jacques Vabre Cass (ch mixte), 24 May 1975, D 1975, 497 ............................................................................ 147 Golfier Cass, 30 June 1999, App no 97-82.351, Bulletin criminel 1999 No 174, 511 ............................................................... 192 Grosmangin Cass (assemblée plénière), 29 June 2001, App no 99-85.973, Bulletin 2001 AP No 8, 19 .............................................. 192 Chapin Cass, 13 March 2007, App no B 05-16.627, judgment no 511 ............................................................................................ 191

Conseil d’Etat Cohn-Bendit CE Ass 22 December 1978, D 1979, 155 ........................................ 74 Nicolo CE, 20 October 1989, Recueil Lebon 190 .............................................. 147 Techna SA CE, 29 October 2003, App no 260768 ............................................. 193

Conseil constitutionnel Liberté d’association CC 16 July 1971, Recueil 29 .............................................. 50 Loi relative à l’interruption volontaire de la grossesse CC 15 January 1975, Recueil 19 .................................................................. 147, 171

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CC 20 January 1984, decision no 83-165, Recueil 30 ........................................ 191 CC 27 June 2001, decision no 2001-446, Recueil 74 ......................................... 190 CC 29 December 2003, decision no 2003-489, Recueil 480............................... 191 CC 30 July 2010, decision no 2010-14/22 QPC ................................................. 212 CC 16 September 2011, decision no 2011-163 QPC .......................................... 212

Germany BVerfG 29 May 1974, Solange I [1974] 2 CMLR 540, 37 BVerfGE 271 .................................................................. 24, 77 BVerfG 22 October 1986, Solange II [1987] 3 CMLR 225, [1986] 73 BVerfGE 339 ....................................................... 24, 77

Israel No’ar K’halacha v Ministry of Education, HCJ 1067/08, 6 August 2009 ................................................................................................ 179

The Netherlands Hoge Raad der Nederlanden Porsche HR 15 October 1996, NJ 1997, 199..................................................... 202 HIV-I HR 25 March 2003, NJ 2003, 552 .......................................................... 202 HIV-II HR 24 June 2003, NJ 2003, 555 ............................................................ 202 HIV-III HR 18 January 2005, NJ 2005, 154 ..................................................... 202 Baby Kelly HR 18 March 2005, NJ 2006, 606 .......................................... 135, 196 HIV-IV HR 20 February 2007, NJ 2007, 313 .................................................... 202 HR 13 June 2008, LJN BC8970........................................................................... 74 HR 5 December 2008, LJN BB0678 .................................................................... 71 Salduz plea HR 30 June 2009, NJ 2009, 349, 350 and 351 ............................... 174 HR 29 September 2009, LJN BI4736 ................................................................. 202 HR 13 November 2009, LJN BJ8724 ................................................................ 197 LEGO v Mega Brands HR 20 November 2009, LJN BJ6999 .................................................................................................... 195 HR 12 October 2010, LJN BN0526 .................................................................. 196 HR 4 January 2011, LJN BO4475 ..................................................................... 196 HR 24 February 2012, LJN BT6689 .................................................................... 74 Mothers of Srebrenica Citizens’ Association and others v State of the Netherlands and the United Nations HR 13 April 2012, LJN BW1999.......................................................................... 175

Afdeling bestuursrechtspraak Raad van State ABRvS 14 May 2008, LJN BD1483 ..................................................................... 74 Luchthaven Eelde ABRvS 11 June 2008, AB 2008, 371 ..................................... 118 ABRvS 25 March 2009, LJN BH7691 ............................................................... 194

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Coffeeshop ‘Easy Going’ ABRvS 8 April 2009, LJN BI0424 .................................................................................................... 175 Mothers of Srebrenica Citizens’ Association v Minister of Defence ABRvS 3 March 2010, LJN BL6245 ......................................... 123, 175 ‘Jezus redt’ ABRvS, 14 July 2010, LJN BN1135 ................................................ 161 Milieuvereniging Land van Cuijk v Raad van de gemeente Cuijk ABRvS 29 December 2010, LJN BO9187 ............................................. 176 Westland v State of the Netherlands (Minister of Economic Affairs) ABRvS 2 March 2011, LJN BP6327 .................................................. 174 ABRvS 23 March 2011, LJN BP8768 .................................................................. 74

District Court of The Hague Mothers of Srebrenica Citizens’ Association and others v State of the Netherlands and the United Nations District Court of The Hague 10 July 2008, LJN BD6796 ........................................... 175

Court of Appeal of The Hague Mothers of Srebrenica Citizens’ Association and others v State of the Netherlands and the United Nations Court of Appeal of The Hague 30 March 2010, LJN BL8979 .................................. 175

United Kingdom Appellate Committee of the House of Lords/UK Supreme Court R v Secretary of State for Transport, ex parte Factortame Ltd and others [1991] 1 AC 603 ........................................................................... 143 Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127 ............................................................................................ 178 Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2001] 3 WLR 877 ............................................................ 168 Director General of Fair Trading v First National Bank [2001] UKHL 52, [2001] 2 All ER (Comm) 1000 .......................................... 181 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 .............................................................................................. 206 R v Boyd and others [2002] UKHL 31 (18 July 2002), [2002] 3 All ER 1074 ..................................................................................... 164 R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 (17 June 2004) .................................................................... 142 N v SSHD [2005] UKHL 31, [2005] 2 AC 296 .................................................. 204 A(FC) v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221................................................................ 189 OBG Ltd v Allan [2007] UKHL 21, [2008] AC 1 .............................................. 180 Sempra Metals Ltd v IRC [2007] UKHL 34, [2008] 1 AC 561 .......................... 180 In Re Sigma Finance Corp (in administrative receivership) and In Re The Insolvency Act 1986 (Conjoined Appeals) [2009] UKSC 2, [2010] 1 All ER 571 ............................................................. 129

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R v Horncastle [2009] UKSC 14, [2010] 2 AC 373............................................ 165 R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728 ............................................................................................ 179 Chartbrook Ltd v Persimmon Homes Ltd and others [2009] UKHL 38, [2009] 4 All ER 677 .......................................................... 181 Her Majesty’s Treasury v Mohammed Jabar Ahmed and others (FC) [2010] UKSC 2, [2010] 2 AC 534 ................................................ 179

Court of Appeal of England and Wales Ahmad v ILEA [1978] 1 QB 36 (CA) ................................................................ 151

United States US Supreme Court Marbury v Madison, 5 US (1 Cranch) 137 (1803) ................................ 39, 170, 224 New York Times Co v Sullivan, 376 US 254 (1964) ........................................... 178 Bowers v Hardwick, 478 US 186 (1986) .................................................... 156, 188 Printz v United States, 521 US 898 (1997) ......................................................... 189 Nixon v Shrink Missouri Government PAC, 528 US 377, 403 (2000) ................................................................................. 187 Atkins v Virginia, 536 US 304 (2002) ................................................................ 156 Lawrence v Texas, 539 US 558 (2003) ............................................... 104, 156, 188 Republic of Austria v Maria V Altmann, 541 US 677 (2004) ............................. 211 F Hoffman-LaRoche Ltd v Empagran SA, 542 US 155 (2004) .......................... 122 Intel Corp v Advanced Micro Devices Inc, 542 US 241 (2004) .......................... 122 Roper v Simmons, 543 US 551 (2005) .............................................. 104, 105, 156, 189, 209 Medellin v Texas, 552 US 491 (2008) ........................................................ 116, 169 Negusie v Holder, 555 US 511 (2009)................................................................ 170 Morrison v National Australia Bank Ltd, 130 US 2869 (2010).......................... 122

Court of Criminal Appeals of Texas Ex parte Medellin, 223 SW 3rd 315 ................................................................... 170

1 Introduction: Highest Courts in Flux

T

HIS BOOK AIMS to offer a new perspective on a much-debated question in current legal scholarship: why do judges study legal sources which originated outside of their national legal system and how do they use arguments from these sources in the deciding of cases?1 The highest national courts in Europe and North America are faced with important changes under the effects of globalisation. Legal systems and actors within these legal systems are increasingly interconnected. These interconnections have brought an increasing number of cases with international or foreign aspects to the courts. Moreover, systemic changes, such as the development of the European legal order and the increase of international legal instruments, have obliged highest courts to develop expertise concerning the application of legal sources elaborated outside of their national legal system. At the same time, meetings in transnational judicial networks and the availability of foreign legal sources, for example through Internet databases, have made it easier and natural for judges to take an interest in developments outside of their national borders. These developments give rise to questions concerning the role and working methods of the highest national courts in this globalised legal context. How do the courts deal with the systemic changes affecting them and with the available opportunities to learn about foreign legal ideas and experiences? Are courts taking over methods or solutions for the deciding of cases from each other; that is, can a convergence of approaches between courts be identified? To what extent are the individual approaches of judges on the highest courts of influence on the development of their court’s working methods and the reasoning of judgments?

1 In this research, ‘foreign law’ is used as a general term to refer to legal sources which originated outside of a specific national legal system. In this sense, this qualification also applies to sources which have acquired the status of national law but originate at the international or supranational level, such as international treaty provisions implemented in a specific national legal system and EU law provisions in the Member States of the European Union. Concerning the status of specific foreign legal sources in the examined national legal systems, see further Chapter 5, I.

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Introduction: Highest Courts in Flux

This book offers a reflection on these questions, based on a two-fold approach. First, we will examine the constitutional framework for the development of judicial practices in Western liberal democracies in the globalised legal context. Secondly, the views and experiences of highest court judges in five national jurisdictions will be described and compared. In a final analysis, the current practices of highest courts will be analysed in light of the described constitutional framework. The next paragraphs will further explain the background to this research, the research methodology, and the structure of the book.

I. THE TREND OF JUDICIAL INTERNATIONALISATION

In recent years, legal scholars, political scientists and social scientists in Western countries have explored the trend of ‘judicial internationalisation’, meaning the increased interaction between judges from different jurisdictions around the world.2 It has been suggested that courts, in particular the highest national courts and courts at the international level, have come to see their work as a common judicial effort across national borders, and that a ‘global community of courts’ is emerging.3 Some authors have made comments about the citation of foreign law and they have given reasons why judges cite foreign law.4 These studies focus on the public debate among judges and academics regarding when judges ought to be able to use foreign law. However, the views and practices of judges themselves have not been studied extensively.5 This book sets out this previously hidden background to the public debate and to the case law. It presents an inside story concerning the judicial decision-making of Western supreme courts and constitutional courts in the globalised legal context, focusing on the highest courts in five legal systems: United Kingdom, Canada, United States, France and the Netherlands. The case law of the highest courts and public speeches held by judges in these courts were analysed. Furthermore, interviews were conducted with highest court judges. On the basis of these materials, a comparative analysis was made of the processes of judicial deliberations and legal reasoning in these

2 See, eg S Muller and S Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010); A Hol et al, ‘Special Issue on Highest Courts and Transnational Interaction’ (2012) 8(2) Utrecht Law Review 1; and further references in the next footnotes. 3 AM Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191. 4 B Markesinis and J Fedtke, Judicial Recourse to Foreign Law (Abingdon, RoutledgeCavendish, 2006) 7– 46. 5 But see B Flanagan and S Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 International and Comparative Law Quarterly 1.

Why Do Judges Cite Foreign Law? 3 courts. Through this interdisciplinary approach, this book clarifies to what extent global influences have really affected the functioning of the highest national courts in representative common law and civil law systems.6 Until now, it has remained unclear in particular to what extent the personal approaches of judges, as representative of their feeling or opinion regarding their role, have an influence on the degree of internationalisation in the decision-making of highest courts. It is no secret that the individual judges at a specific court can have very different opinions about the discretion granted to them in the selection of sources for their decision-making. These differences are visible in the US Supreme Court, where Justice Scalia has opposed the recourse to non-binding foreign law in the deciding of cases, while some of his colleagues—including Justice Breyer, Justice Ginsburg and Justice Kennedy—have taken more favourable positions, both in public debate and in published judgments of the Supreme Court.7 These differences of opinion are less visible in other jurisdictions, such as France and the Netherlands, where no tradition of separate or dissenting opinions exists. However, the US example and studies on the process of judicial decisionmaking more generally make clear that the personal approaches of judges can have an influence on the decision-making in concrete cases and on the development of the working methods of specific courts.8 In this respect, it seems important to obtain more insight into judges’ personal approaches regarding the use of legal sources which originate outside of their national legal system. Such insight, both with regard to binding international law and non-binding foreign sources, can contribute to the better understanding of the development of judicial decision-making in the globalised legal context. Aiming to address the issues raised by judicial internationalisation, this book’s focus is on the development of the working methods of highest courts and the personal approaches to the use of foreign law developed by the judges in these courts.

II. WHY DO JUDGES CITE FOREIGN LAW?

Why and how do judges use foreign legal sources in judicial decisionmaking at the highest national level? Answering this research question is essential for the further development of the role of Western highest courts in their national legal order as well as at the transnational level. Indeed, 6

For a further explanation of the research methodology, see below, III. N Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519; see further Chapters 4 and 5. 8 See, eg TJ Miles and CR Sunstein, ‘The New Legal Realism’ (2008) 75 University of Chicago Law Review 831; RA Posner, How Judges Think (Cambridge, MA, Harvard University Press, 2008). 7

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Introduction: Highest Courts in Flux

questions about the legitimacy and methodology of decision-making have a significant impact on courts and on individual judges, as the US example shows. Uncertainty about the possibilities of using foreign law has been harmful to the image of this highest court in academic circles, and is considered to weaken its ability to develop judicial leadership at the transnational level.9 Insight into the mechanisms which influence the decision-making of the highest national courts is invaluable for the future development of the role of these courts as guardians and developers of the law at the national level, as well as at the transnational level. Based on a comparative and empirical analysis, this book makes two central claims. The first claim is that a judge’s personal approach is a highly determinative factor as regards both the influence granted to binding foreign legal sources, such as international law and the law of the European Union (EU), and the use of non-binding foreign legal materials, such as foreign case law, in the deciding of cases. In a general manner, the working methods and style of reasoning of courts can enable or constrain the possibilities of including foreign law in judicial deliberations and of the citation of foreign law in judgments. However, the interviews conducted for the research make clear that individual judges have an important influence on the way in which foreign law is used in their court. The individual use of foreign law by judges in deliberations and in judgments, beyond the mandatory use of sources, depends on three main factors: legal tradition, language and the prestige of foreign courts. Interestingly, the voluntary recourse to foreign law currently does not seem to follow a specific logic. Furthermore, even though a theoretical distinction can be made between materials which are formally binding and materials which are not, the interviews reveal that when making use of comparative legal methods the majority of the interviewed judges focus more on finding relevant arguments for their decision than on the status of the source from which these arguments originate. This is particularly the case during the process of discovering the law, where arguments from comparative law are valued for the insights which they provide regarding the possible interpretation of the law. In the process of justifying the decision, judges still look to binding legal sources first but do sometimes mention additional arguments based on non-binding comparative legal sources. The second major claim of this book is that a trend of convergence of judicial practices, running parallel with the increase of transnational legal instruments and the development of transnational legal orders, seems to be taking place. Certainly, a strong posture of resistance to the use of foreign law in the judging of cases exists in some circles, most prominently in the

9 VC Jackson, Constitutional Engagement in a Transnational Era (Oxford, Oxford University Press, 2009).

Why Do Judges Cite Foreign Law? 5 United States.10 Moreover, criticism of the EU legal order, the regime of the European Convention on Human Rights (ECHR), and the courts which are at the top of these structures11 suggests that the transnational convergence of legal orders and judicial practices can only develop through a gradual process of harmonisation, which furthermore has its limits. Indeed, the recognition of constitutional pluralism in the European Union and a ‘margin of appreciation’ for member states to the ECHR are fundamental to the nature of these legal regimes.12 Notwithstanding this continued significance of national legal borders, the comparative study of the five aforementioned legal systems shows that the legal sources discussed in judicial deliberations of the highest national courts in these systems, as well as the working methods of these courts in general, are becoming increasingly similar. Two main causes of this convergence can be identified. On the one hand, the increase of personal contacts between judges and the better availability of foreign legal materials have created a platform for the exchange of legal ideas and practices. On the other hand, the increased formal interconnections between legal systems have made it legitimate and interesting for highest court judges to take account of foreign legal ideas and experiences. In addition to these observations based on the comparative and empirical analysis, this book contributes to the constitutional-theoretical understanding of the development of judicial practices. Chapter 2 sets out procedural and substantive aspects of legal evolution, which concern the ‘(in-)flexibility’ of national constitutions to accommodate normative changes such as the internationalisation of legal and societal interaction. These aspects of legal evolution concern the development of constitutional rules and procedures, as well as the role of particular principles and conventions which characterise the interaction between actors in specific national legal systems. We come back to this theoretical framework in Chapter 6, in which the explanatory value of the identified aspects is tested in light of the results of the empirical study of the highest courts. This constitutional-theoretical analysis clarifies that the development of judicial internationalisation in national legal systems is dependent on procedural factors as well as substantive factors of legal evolution. At the procedural level, constitutional norms can enable or constrain the use of foreign law by the national courts. The courts can accelerate or slow down the development of this practice through the interpretation of their function in light of the applicable constitutional norms. The integration of binding international treaty law and EU law in national legal systems influences this interpretative process, as these instruments create a systemic framework for judicial interaction across the 10

Ibid. See Chapter 4, I. 12 J Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80. 11

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Introduction: Highest Courts in Flux

national legal borders. At the substantive level of legal evolution, the use of foreign law is influenced by the occurrence of ‘globalist’ and ‘localist’ views of highest court judges concerning the role of foreign law in the decisionmaking in domestic cases. These two perspectives relate to a perception of the national and international legal orders as distinct legal spheres (localist view) or as interconnected legal spheres (globalist view), and translate into corresponding views about the possibility and usefulness of transnational judicial exchanges. Other relevant substantive factors of legal evolution are legal tradition and the nature of cases judged by the highest courts, and the effectiveness and efficiency of the decision-making of these courts. Besides its value for the study of the development of judicial practices in the five legal systems included in this book, the theoretical framework has the potential to explain the role of judicial internationalisation in other Western liberal democracies. Furthermore, this framework provides points of reference for the assessment of the possible future development of judicial internationalisation in Western highest courts.

III. LEARNING FROM THE VIEWS OF JUDGES

This book’s arguments are developed through a combined use of comparative and socio-legal research methods and constitutional theory. Through its concern with theoretical aspects of the functioning of highest courts as well as with the actual practices of decision-making in these courts, the book is able to go beyond existing descriptions and explanations of judicial internationalisation. This combination of theoretical and empirical research thus builds on and contributes to the rich field of scholarship which has emerged in recent years to study judicial dialogue and the judicial recourse to foreign law.13 In particular, this book contributes to the knowledge on judicial approaches by cataloguing the considerations voiced by judges concerning their working methods in the globalised legal context and concerning the use of foreign law in judicial decision-making. Through interviews with judges in the five examined jurisdictions, this research clarifies which individual approaches of judges to the use of foreign law exist, and how these approaches affect the deciding of cases. The research focuses on the highest national courts, since it can be assumed that judicial reflection on global influences will most likely be found at this level of judicial decision-making.14 After all, the national highest courts have to deal in the final instance with the most difficult questions of legal interpretation and have the final authority, at the national level, to determine what the law means. 13 14

See below, IV. Muller and Richards, Highest Courts (n 2) 2.

Learning from the Views of Judges 7 Since judicial deliberations are not public and not all considerations made by individual judges are revealed in the judgments of the selected highest courts, talking to the judges themselves was required to establish which personal approaches of judges exist and how influential these approaches are with regard to the use of foreign legal materials in specific courts. The qualitative method of analysis was preferred over the possibility of a quantitative study. Indeed, as the number of judges on the national highest courts is limited, the collection of reliable quantitative data would require the cooperation of almost all judges on a specific court. This was too difficult to achieve. Moreover, sufficiently reliable information could be obtained also through the linking of information from the interviews with case law and other sources which provide information concerning judicial approaches, such as public lectures.15 This research focused on the highest national courts in the United Kingdom, Canada, the United States, France and the Netherlands. This selection of courts was based on the fact that these highest courts are currently facing important changes which, at least in part, seem to be related to the impact of globalisation on the national legal systems in which they are functioning.16 The comparability of the courts follows from their shared background in Western liberal democracies; that is, states which share the traditions of democracy, rule of law, human rights protection and open government.17 The selection of courts takes into account similarities and differences which might exist based on: (1) the legal tradition in which the highest courts function (common law or civil law); (2) the competences of review, composition and caseload of the courts; and (3) the expected differences in leadership of courts in transnational judicial dialogue on the basis of the size of the legal system in which the court functions and genealogical or linguistic connections with other legal systems.18 Two further remarks should be made concerning this selection of courts for the comparative study. First, the absence of Germany might be criticised, given the prominent role of the German Bundesverfassungsgericht and Bundesgerichtshof in transnational judicial communication. Indeed, many of the interviewed judges in the five examined legal systems mentioned the German highest courts as a point of reference or a source of inspiration. However, since the selection needed to be limited, the choice was made to include France rather than Germany as a large civil law system with an ‘exemplary’ function in transnational judicial dialogue. This choice was based partly on the French heritage of the Dutch highest courts,

15

See further Chapter 3, IV. See Chapter 3, I–II. 17 T Koopmans, Courts and Political Institutions: A Comparative View (Cambridge, Cambridge University Press, 2003) 7–8. 18 See Chapters 2 and 3. 16

8

Introduction: Highest Courts in Flux

which provided interesting elements for the comparison of judicial practices between these two systems. Practical reasons played a role as well, in particular the researcher’s greater affinity with and knowledge of the French legal system and the possibilities of getting in contact with judges in the French highest courts. This is not to deny that further research which includes the German legal system could be very rewarding and is therefore recommended. Secondly, the two specialised administrative courts of final appeal in the Netherlands—the Centrale Raad van Beroep (Administrative High Court) and the College van Beroep voor het bedrijfsleven (Trade and Industry Appeals Tribunal)—have been excluded from the comparison. The reason for this is that these courts do not have an equivalent in the other examined legal systems. Moreover, the role of these two courts in the Dutch legal system, in terms of jurisdiction and in terms of caseload, is limited when compared to the general highest courts in the Netherlands.19

IV. SCOPE OF THE RESEARCH

This book does not include a quantitative analysis of the use of foreign law by the examined highest courts. As it was already mentioned, the aim of the research was to identify different judicial views and approaches to the use of foreign law rather than to analyse quantitatively the practices in the courts. Therefore, and also because of the confidentiality of the interviews, the research results will be presented in the form of a narrative rather than in quantitative terms. For a substantiation of the number of references between highest courts the research relies on other sources. In particular, the quantitative analysis by Martin Gelter and Mathias Siems regarding cross-citations between highest courts in European legal systems is noteworthy.20 Concerning the exchange of ideas in judicial networks, furthermore, research has been conducted by Monica Claes and Maartje de Visser and by Emmanuel Lazega in the framework of the Highest Courts Project facilitated by the Hague Institute for the Internationalisation of Law (HiiL).21 At the theoretical level, the research presented in this book builds on the work of other constitutional theorists and comparative legal researchers. Vicki Jackson has identified postures of resistance, convergence and engagement of courts with international and foreign law. Her book Constitutional 19

See Chapter 3. M Gelter and M Siems, ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts’ (2012) 8 Utrecht Law Review 88. 21 M Claes and M de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’ (2012) 8(2) Utrecht Law Review 100; E Lazega, ‘Mapping Judicial Dialogue across National Borders: An Exploratory Network Study of Learning from Lobbying among European Intellectual Property Judges’ (2012) 8(2) Utrecht Law Review 115. 20

Scope of the Research 9 Engagement in a Transnational Era focuses on cross-national references in constitutional court decisions. She gives particular attention to the US debate, and argues that the Supreme Court should cautiously engage with transnational legal sources when interpreting the national constitution.22 Aida Torres Pérez, in her book Conflicts of Rights in the European Union, has developed a theory of supranational adjudication. Taking the idea of judicial dialogue as a starting point, she analyses the value of this idea and the possible legitimacy it can give to judicial decision-making at the supranational level of the European Union.23 Mitchel Lasser’s Judicial Deliberations offers a thorough comparative analysis of the judicial argumentation of the US Supreme Court, the French Cour de cassation, and the Court of Justice of the European Union (CJEU). Lasser’s analysis of institutional, conceptual and argumentative aspects of these courts’ decision-making makes visible how specific mechanisms of judicial accountability, judicial deliberations and legitimacy have developed.24 In Judicial Transformations, Lasser examines the so-called ‘rights revolution’ in the courts of Europe. His book studies the changes in European judicial culture and litigation, in particular in France, in the context of the emergence of fundamental rights protection at the level of states and at the level of the European Court of Human Rights and the CJEU.25 Finally, Michal Bobek in his doctoral thesis Comparative Reasoning in European Supreme Courts, which he defended at the European University Institute in 2011, has analysed the use of comparative arguments as persuasive authority in the judicial decision-making of the national supreme courts in five continental-European countries. His research encompasses a quantitative analysis of these courts’ use of foreign law and a theoretical analysis in light of national positivistic legal theories. Bobek concludes that the comparative practices of the examined supreme courts of the Czech Republic, the Slovak Republic, Germany, France, and England and Wales demonstrate a utilitarian and pragmatic approach of courts to the use of foreign law. He argues that the ‘digestion’ of new legal ideas coming from comparative law should first take place in the legal doctrine, resulting in a mainstream opinion which can be taken over by the judiciary.26 The current book’s qualitative analysis demonstrates that a more nuanced picture of the judicial views and practices in the globalised legal

22

Jackson, Constitutional Engagement (n 9). A Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication (Oxford, Oxford University Press, 2009). 24 M de S-O-l’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004). 25 M de S-O-l’E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009). 26 M Bobek, Comparative Reasoning in European Supreme Courts: A Study in Foreign Persuasive Authority (Doctoral thesis, European University Institute, 2011). 23

10

Introduction: Highest Courts in Flux

context emerges when considering the background to the public debate and the published judgments of Western highest courts. The judges’ views, as expressed in the interviews, highlight the general interest of judges concerning foreign legal ideas and experiences, and the perceived value of judicial engagement in legal comparison. This engagement is becoming more legitimate and interesting for judges under the current effects of legal integration across national borders, embodied in the growth of the international and supranational legal orders and the increase of judicial networks. Judges feel encouraged to look beyond traditional positivistic approaches in their judicial decision-making and to focus on the search for persuasive arguments for the legal reasoning of judgments. Because of its focus on the general practices of several common law and civil law courts, the current book is able to offer a novel and integrative analysis of the judicial recourse to foreign law. It examines the type of cases and legal tradition as factors which influence the use of foreign law. Furthermore, the insights obtained through the study of the practices of the selected highest courts are linked with a theoretical perspective on processes of judicial decision-making. The analytical framework, developed in Chapter 2 and applied to the development of judicial internationalisation in Chapter 6, describes and explains the constitutional accommodation of the judicial function in Western liberal-democratic legal systems.27 It reflects a dynamic approach which starts out from the idea that under the effects of societal, economic and political changes, there is a need for new solutions for the functioning of national judiciaries. Judicial internationalisation is an example of such a change which needs to be accommodated into the national legal context. Through its comparison of legal systems, this research is able to map the dynamics of constitutional change, and to identify to what extent change is enabled or constrained by national constitutions and constitutional conventions. This book starts out from this constitutional-theoretical perspective to describe and explain the tendency of judicial internationalisation, and provides empirical insight through a connection with institutional, organisational and individual judicial perspectives on the decision-making of highest courts.

V. OUTLINE OF THE BOOK

In Chapter 2, a constitutional-theoretical perspective is introduced, which will be used to assess the development of internationalised judicial practices

27 This framework was developed previously in E Mak, De rechtspraak in balans (Nijmegen, Wolf Legal Publishers, 2007), and E Mak, ‘Understanding Legal Evolution through Constitutional Theory: The Concept of Constitutional (In-)Flexibility’ (2012) 4 Erasmus Law Review 193.

Outline of the Book

11

in the highest courts. The concept of ‘constitutional (in-)flexibility’ aims to clarify how national constitutional frameworks enable or constrain the integration of normative changes, such as the changes induced by judicial internationalisation, in national legal systems. Four procedural elements encompassed by this concept are identified: the detailed content of constitutional norms, the modalities for revising the national Constitution, the approach to legal argumentation taken by interpreters of the Constitution, and the influence attributed to international law within the national legal system. Besides these procedural aspects, four substantive factors which might explain the development of judicial internationalisation are introduced. These substantive factors are: considerations regarding the democratic justification of judicial decisions, including the nature of the consulted sources and the nature of the judicial competence; legal tradition, in particular the classification as a common law or as a civil law system; the nature of cases brought before a highest court; and considerations regarding the effectiveness and efficiency of judicial decision-making in the highest courts. The research into the judicial approaches in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands is presented next in an integrated comparative analysis. To set the scene for this analysis, the book starts out with an overview of the selected highest courts in Chapter 3, addressing their history and current debates concerning their role and functioning in the globalised legal context. A distinction is made between two institutional set-ups of highest courts, which are labelled the Anglo-Saxon model and the French model of the organisation of final appeal. In some legal systems, a single highest court is at the top of the national judicial system. This is the case for the Supreme Court of the United Kingdom, which is the court of final appeal for civil cases in the United Kingdom and for criminal cases in England, Wales and Northern Ireland. This is also the case for the Supreme Court of Canada, which judges appellate cases in the field of civil and criminal law, and for the US Supreme Court, which is the highest federal court in the United States. In other legal systems, several highest courts together constitute the final appeal system at the national level. In France, the Cour de cassation is the supreme judge in civil and criminal cases and the Conseil d’Etat is the supreme administrative judge. The Conseil constitutionnel, since the introduction of a posteriori review of legislation in 2009, has acquired the status of a true constitutional judge, able to protect the rights of citizens in concrete cases.28 The Dutch judicial system is a carbon copy of the original French model, which was introduced during the Napoleonic occupation between 1795 and 1813. The system features the Hoge Raad der Nederlanden (Supreme Court of

28

See Chapter 3, IIA.

12

Introduction: Highest Courts in Flux

the Netherlands) as the final judge in civil, criminal and tax law cases and the Afdeling bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State) as the supreme administrative court with general jurisdiction.29 The organisation of final appeal on the basis of the Anglo-Saxon or on the basis of the French model has implications for the competences of review, the composition and the caseload of the highest courts. Moreover, the existence of multiple highest courts in the French model raises the question of whether interaction exists between these courts and how they position themselves in the interaction with highest courts at the above-national level and in foreign jurisdictions. The particularities of each of the courts examined in this research are taken into account in the analysis in Chapters 4 and 5, which present the results of the empirical research. Changes in the functioning of the highest national courts are identified in Chapter 4 with regard to two aspects of their role: the function of guardian of the law, including the guarantee of the uniform application of the law and the protection of fundamental rights, and the contribution to the development of the law. Concerning both of these aspects, the research shows that the highest courts are currently expected to take account of relevant foreign legal sources and the legal ideas and experiences of judges in other jurisdictions. The impact of global influences is examined next with regard to the international relations engaged in by highest court judges, and with regard to the highest courts’ working methods for the deliberation and judgment of cases. This analysis reveals that the personal approaches of judges are of significant influence, both concerning the participation in transnational exchanges and concerning the need felt and efforts made to include foreign legal sources in the highest courts’ decision-making. The use of foreign law by the examined highest courts is scrutinised in more detail in Chapter 5. On the basis of the interviews with judges and the analysis of the case law of the highest courts, a distinction is made between the use of formally binding sources of international law and non-binding foreign legal sources. Binding sources which are used by the highest courts include the ECHR and EU law in the United Kingdom, France and the Netherlands, and a variety of international treaties in all of the examined jurisdictions. Non-binding legal materials which play a role in the deciding of cases are the judgments of courts in foreign national jurisdictions, as well as ‘soft law’ instruments such as transnational private regulations and the Principles of European Contract Law. It is demonstrated that the status granted to foreign legal sources and the use that is made of these sources depend on systemic factors in a specific legal system, such as the model for

29 See also above, III, concerning the specialised highest administrative courts in the Netherlands.

Outline of the Book

13

the implementation of international law or the style of judicial reasoning of the highest court, as well as on personal approaches of the highest court judges, including their affinity with and capability regarding the study of foreign law. In Chapter 6, finally, the theoretical framework set out in Chapter 2 is applied to the development of judicial internationalisation in the examined jurisdictions. This analysis clarifies how similarities and differences concerning the development of the practices of highest national courts are integrated within different legal systems. The reflection based on the constitutional-theoretical perspective reveals in particular how the individual approaches of judges influence the development of judicial internationalisation in the highest national courts. Furthermore, this chapter contains a brief reflection on the possible future development of the practices of highest national courts in Western legal systems. Under the effects of further internationalisation or, by contrast, a renationalisation of the law, judges can be stimulated either to strive for a further convergence of their decision-making practices or for a return to or persistence of decision-making primarily on the basis of national standards and legal sources. Under the effects of privatisation, the status of regulations made by private actors at the national and transnational level might become more important. We will end our exploration by observing that legal scholarship, such as the comparative analysis presented in this book, can assist highest court judges in establishing what they can and may do when deciding domestic cases in this evolving legal and societal context.

2 Understanding the Development of Highest Courts’ Practices A Constitutional-Theoretical Approach

T

O WHAT EXTENT do the personal approaches of judges have an influence on the development of the decision-making of highest national courts in the globalised legal context? Is a convergence of judicial practices across national borders taking place? As stated in Chapter 1, this book aims to describe as well as explain the development of the judicial practices of Western highest courts under the effects of judicial internationalisation. Based on a comparative and empirical analysis, we will be able to evaluate the influence of individual judges on the development of the practices of selected highest courts. Furthermore, the analysis will allow us to assess the probability of a convergence of judicial practices between national legal systems in the future and of the challenges to be dealt with in the event of such a convergence. In light of this aim of the research, an interesting observation is that the practices of the highest national courts in Western liberal democracies seem to develop faster, or in a different way, in one jurisdiction in comparison to another. When considering, for example, the citation of foreign references, it is clear that such citations occur much more frequently in judgments of the Anglo-Saxon highest courts than in the judgments of the French and Dutch highest courts.1 Still, the reasoning of the French and Dutch courts is developing, leading to occasional citations of foreign case law but also to different procedural reforms concerning the selection of cases and the use of comparative research in the courts.2 At the same time, controversy about judicial openness to foreign influences in the United States puts 1 M Gelter and M Siems, ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts’ (2012) 8 Utrecht Law Review 88; B Flanagan and S Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 International and Comparative Law Quarterly 1. See further Chapter 4. 2 See Chapters 3, 4 and 5.

Understanding the Development of Highest Courts’ Practices 15 pressure on the engagement of judges with foreign law and has prompted legislative attempts to ban the developed practices of the courts.3 A central question of the research is: how can we explain these similarities and differences? The argument presented in this chapter is that similarities and differences between national judicial practices relate to the constitutional rules, principles and conventions for the functioning of the highest courts. The concept of ‘constitutional (in-)flexibility’, which is explained below, provides a theoretical framework for the understanding of the interaction between these rules, principles and conventions.4 We will see that the development of judicial practices, as a form of legal evolution, depends on the constitutional procedures and substantive norms of a national legal system. The essential element, in this regard, is the openness of the system of procedures and substantive norms to the integration of normative change, such as the increased societal call to harmonise legal rules and develop judicial best practices in the globalised legal context.5 This openness varies between legal systems. After all, the constitutional procedures and the substantive characteristics of the judicial institution in a legal system create a certain path dependency, in the sense that normative change will be related to these existing procedures and characteristics.6 This chapter will outline this constitutional-theoretical framework, which will serve as the point of reference for the analysis of the questions of personal influence and the possibility of convergence of judicial practices in the remainder of this book. This chapter is structured as follows. First, we will see how insights from constitutional theory can help to understand processes of legal evolution. In this regard, the concept of ‘constitutional (in-)flexibility’ will be introduced as a central explanatory factor. Secondly, the analysis will address the procedural aspects of legal evolution, which concern the form and interpretation of constitutional norms. Thirdly, substantive explanatory factors of legal evolution will be discussed, focusing on characteristics of national legal systems which might be relevant for the understanding of the development of the practices of the highest courts. This analysis will set the stage for the study of the views and experiences of the interviewed judges in the next chapters.

3

Ibid. Part of this chapter is an adaptation of E Mak, ‘Understanding Legal Evolution through Constitutional Theory: The Concept of Constitutional (In-)Flexibility’ (2012) 4 Erasmus Law Review 193. 5 See Chapter 1, I, and Chapter 4, I. 6 On the concept of ‘path dependence’ as related to legal change, see, eg OA Hathaway, ‘Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System’ (2001) 86 Iowa Law Review 101. 4

16

Understanding the Development of Highest Courts’ Practices I. CONSTITUTIONAL THEORY AND LEGAL EVOLUTION

In order to clarify the relevance of constitutional theory for the understanding of legal evolution, we will first discuss this question from a general perspective, then consider the specific explanatory value of the concept of ‘constitutional (in-)flexibility’.

A. Understanding Legal Evolution through Constitutional Theory To what extent can constitutional theory contribute to the understanding of legal evolution? To begin with, some conceptual clarifications are required. ‘Legal evolution’ is the term used to refer to the development of the law over time.7 ‘Law’ in this definition can be understood as referring to the system of rules which are accepted by a specific community as governing the actions of the members of that community, and which are enforced through the imposition of sanctions.8 The term ‘evolution’ suggests that this system of rules develops gradually over time,9 by way of changes in the society governed by the law. It has been suggested in legal-theoretical literature that four causes play a role in legal evolution: changes in the pressure of the law-making forces of the classes in a society; a clearer perception of economic needs; the development of greater moral courage by the community; and improvements in legal machinery.10 The process of legal development under the effect of these causes, which represent different starting-points for the occurrence of normative changes in legal systems, can be studied from different academic perspectives. One of these is the perspective of constitutional theory. Constitutional theory is a scholarly approach to government, which focuses upon the nature and significance of constitutions.11 A ‘constitution’

7 P Stein, Legal Evolution: The Story of an Idea (Cambridge, Cambridge University Press, 2009). 8 This description is based on the definition found at oxforddictionaries.com (lemma ‘law’). It is well-known, however, that the definition of the concept of law is a topic of continuous debate amongst legal philosophers. This debate focuses, inter alia, on the nature of legal norms, including the distinction between law and morality and the necessity of the requirement of sanctions. The discussion of the concept of law falls outside the scope of this chapter. Interested readers might refer to the extensive literature on this topic, to which famous contributions have been made by HLA Hart, The Concept of the Law, 2nd edn (Oxford, Oxford University Press, 1997); R Dworkin, Law’s Empire (Oxford, Hart Publishing, 1998, original edn 1986). 9 oxforddictionaries.com (lemma ‘evolution’, meaning 2: ‘the gradual development of something’). 10 WM Blatt, ‘Some Principles of Legal Evolution’ (1913) 23 Yale Law Journal 168. 11 DJ Galligan, ‘The Paradox of Constitutionalism or the Potential of Constitutional Theory?’ (2008) 28 Oxford Journal of Legal Studies 343, 344.

Constitutional Theory and Legal Evolution 17 is understood in this study as a set of fundamental norms (rules, principles and conventions) which forms the basis for the government of a specific community (in general, the community of people organised within a state).12 These underpinnings of government are visible in the constitutional law of states, namely, the primary law concerning the establishment of the institutions of government, the attribution of competences to these institutions and the regulation of the relations of these institutions to one another and to the citizens.13 The idea of constitutional government is embodied in the principle of the rule of law, namely, the principle that all within the state should be subjected to the law.14 In liberal-democratic states, the specific normative framework expressed in the Constitution includes the traditions of democracy, rule of law, human rights protection and open government.15 The analysis in this chapter will show how constitutional theory, based on the subject matter it covers, can contribute to the understanding of a specific aspect of legal evolution, namely, the development of the legal arrangements regarding the judicial branch of government. The chapter will address both the possibilities and the limitations of constitutional theory for the study of this aspect of legal evolution.16 The central thesis to be defended is that the development of national institutional legal arrangements, such as the arrangements concerning the jurisdiction, organisation and working methods of the courts, is catalysed by the constitutional rules, principles and conventions which underpin the government of the national community. More specifically, it will be argued that extra-legal normative changes (for example, of a political, economic or moral nature) are accommodated in a specific legal system through the filter of this system’s constitutional framework.17 The concept of ‘constitutional (in-)flexibility’ will be introduced as an analytical concept, which aids the understanding of the form and speed of this integration of normative changes into national legal

12

See in more detail below, IIA. CAJM Kortmann, Constitutioneel recht (Deventer, Kluwer, 2005) 9. 14 See T Bingham, The Rule of Law (London, Allen Lane, 2010) 8. 15 T Koopmans, Courts and Political Institutions: A Comparative View (Cambridge, Cambridge University Press, 2003) 7. 16 It should be noted that other academic disciplines also provide angles to study legal evolution at the constitutional level. See, eg S Voigt, Explaining Constitutional Change: A Positive Economics Approach (Cheltenham, Edward Elgar Publishing, 1999). 17 The analysis in this chapter will focus on the functioning of the constitutional frameworks of national legal systems. However, insights from this analysis might also be relevant for the study of emerging supranational constitutional frameworks, in particular the EU legal order. 13

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Understanding the Development of Highest Courts’ Practices

systems, and which thus, amongst other things,18 helps explain the specific process of the legal development of institutions of government.19 In the next section, the concept of constitutional (in-)flexibility as a catalyst of legal evolution will be described in greater detail. We will return to this concept in Chapter 6, in which it will be used to describe and explain the development of institutional legal arrangements in national legal systems, focusing on the influence of judicial internationalisation on the organisation and working methods of highest national courts.

B. Concept of ‘Constitutional (In-)Flexibility’ The concept of ‘constitutional (in-)flexibility’ concerns the relative openness of the constitutional framework of a specific legal system as regards the expression of normative change.20 The meaning of this concept can be explained in more detail by focusing on the separate elements of ‘constitution’ and ‘(in-)flexibility’. The notion of ‘constitution’, first, refers to the fundamental legal rules and principles of a legal system—namely, its Constitution—as well as the conventions which underlie these fundamental rules and principles. In a substantive sense, the Constitution is the set of norms which determines the production of general and abstract norms within the legal system.21 In a formal sense, it is the set of norms which has a supreme normative status through its formalisation as a set of norms for which the conditions of 18 The significance of ‘constitutional (in-)flexibility’ is not restricted to the development of institutional legal arrangements only. The (in-)flexibility of a legal system’s constitutional framework also has a significant impact on the possible degree and speed of reforms concerning certain areas of society, such as the privatisation of public utilities in OECD countries or the reforms in European higher education systems. See, eg C Schmitt and H Obinger, ‘Constitutional Barriers and the Privatization of Public Utilities in Rich Democracies’ (2011) 7 World Political Science Review 1 (art 7). In the political economy literature, these implications of constitutional (in-)flexibility have been addressed, inter alia, by WJ Henisz, ‘Political Institutions and Policy Volatility’ (2004) 16 Economics and Politics 1; N Hoffman, ‘Political Institutions and Policy Outcomes: The Political Constraints Approach of Henisz’ (2010) 8 CESifo DICE Report 53; G Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ, Princeton University Press, 2002). 19 The choice to focus on this concept does not mean to deny that constitutional theory also offers alternative analytical frameworks to clarify processes of legal evolution. See, eg RB Siegel, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA’ (2006) 94 California Law Review 1323 (relating constitutional understanding to the way in which constitutional culture enables or constrains social movement conflict); M Jacobson, Understanding Legal Evolution: The Construction of the Constitutional Order in Europe, Hebrew University of Jerusalem Working Papers (2005), available at www.ef.huji. ac.il/publications/jacobson.pdf (relating legal evolution to social conceptions of rights which construct a legal order through a social communication process). 20 See also E Mak, De rechtspraak in balans (Nijmegen, Wolf Legal Publishing, 2007), in particular ch 3. 21 L Favoreu et al, Droit constitutionnel (Paris, Dalloz, 2001) 69.

Constitutional Theory and Legal Evolution 19 validity encompass elements other than those required for all other forms of law.22 Constitutions can be codified, like the United States Constitution23 or the German Grundgesetz.24 Constitutions can also be non-codified or unwritten, like the Constitution of England.25 Codified Constitutions in contemporary Western liberal democracies usually contain general provisions regarding the establishment and functioning of the branches of government, including the judiciary, as well as a catalogue of fundamental rights.26 Non-codified constitutional norms, such as the norms included in the English Constitution, have substantive but no formal constitutional status. They determine the conditions for the elaboration of rules within the legal system, but do not have a different normative status from other rules in that legal system. Complementing the constitutional rules and principles, constitutional conventions are the unwritten fundamental norms which affect principles, determine the possible interpretations of legal norms, or formulate unspoken rules.27 An example of such an unwritten constitutional convention is the principle of the sovereignty of Parliament, which underpins the English legal system. The constitutional conventions form ‘the flesh which clothes the dry bones of the law’, or the muscles that make the constitutional skeleton move.28 In yet another metaphorical term: they are the Constitution’s ‘dark matter’.29 The notion of ‘(in-)flexibility’, secondly, relates to a process of change. Given the role of Constitutions as the basic set of rules for the governing of a specific community, they are supposed ‘to be of a certain permanence’.30 However, it is also generally admitted that to endure in a changing legal context,31 and to guide legal development in such a changing context,32 constitutional frameworks should possess a degree of flexibility in light of

22

Ibid 72. See www.usconstitution.net. 24 See www.gesetze-im-internet.de/gg. 25 V Bogdanor, The New British Constitution (Oxford, Hart Publishing, 2009) 5. 26 See, eg the US Constitution or the German Grundgesetz (nn 23 and 24). 27 P Avril, Les conventions de la Constitution (Paris, PUF, 1997) 12. See also LH Tribe, The Invisible Constitution (Oxford, Oxford University Press, 2008), in which the author analyses the ‘ocean of ideas, propositions, recovered memories and imagined experiences’ (at 9), which gives meaning to the ‘visible’ Constitution of the United States. 28 Avril, Les conventions (n 27) 12, citing WI Jennings, The Law and the Constitution, 2nd edn (London, University of London Press, 1938) 80. 29 Tribe, The Invisible Constitution (n 27) 210. 30 A Busch, ‘The Grundgesetz after 50 Years: Analysing Changes in the German Constitution’ (2000) 9 German Politics 41, 46. 31 Z Elkins, T Ginsburg and J Melton, The Endurance of National Constitutions (Cambridge, Cambridge University Press, 2009) 4 (arguing that the endurance of constitutions is related more to constitutional design than to the environment which hosts the Constitution). 32 See, eg M Tushnet, Why the Constitution Matters (New Haven, CT, Yale University Press, 2010). 23

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Understanding the Development of Highest Courts’ Practices

changing circumstances.33 Simply put, the Constitution and its conventions should be able to catalyse legal development in a changing society. In this light, ‘(in-)flexibility’ is the parameter which explains to what extent national Constitutions allow for the integration of normative changes, which occur in a specific society, within the national legal framework for government. For example, the aforementioned development regarding the conception of the judicial function in a globalised world represents such a normative change. On the basis of its degree of (in-)flexibility, the constitutional framework of a specific national legal system determines how and to what extent normative changes can be integrated into this legal system. The constitutional framework of a national legal system thus enables or constrains the accommodation of normative change. The question thus arises: which factors determine the (in-)flexibility of a specific constitutional framework? The next two sections will outline the procedural and substantive elements encompassed by this concept.

II. PROCEDURAL ASPECTS OF LEGAL EVOLUTION

From the procedural perspective, the (in-)flexibility of Constitutions with regard to the expression of normative change is related to several elements. Two elements concern the norms which make up the Constitution. Two other elements concern the interpretation and application of the Constitution. We will see that the degree of (in-)flexibility of a specific constitutional framework depends upon the legal system’s constitutional corpus of rules and the possibility of modifying these rules, as well as upon the judicial interpretation of the Constitution and the influence of international law.34

A. Detail of Constitutional Norms First, constitutional (in-)flexibility is determined by the degree of detail of constitutional norms. A limited degree of detail will entail a relatively flexible constitutional framework. A high degree of detail, by contrast, will lead to less flexibility. In the latter case, the Constitution will leave less scope for interpretation than in the case of less-detailed norms. In other words: the 33 Busch, ‘The Grundgesetz’ (n 30) 46, referring to K Loewenstein, Über Wesen, Technik und Grenzen der Verfassungsänderung (Berlin, De Gruyter, 1961) 21. 34 See also E Mak, ‘Justice at a New Scale: Introducing a Conceptual Framework for the Analysis of Highest Courts’ Role in a Globalised Context’, in S Muller and S Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010) and Mak, De rechtspraak in balans (n 20) 105 ff.

Procedural Aspects of Legal Evolution 21 detail of constitutional norms limits the scope of discretion attributed to the interpreter of constitutional norms.35 A clear example of the constraints which the Constitution can impose through detailed constitutional norms is found in the German Grundgesetz, which contains, inter alia, a precise set of provisions regarding the organisation of the domestic court system.36 Article 101 Grundgesetz, which codifies the principle of the ‘gesetzlicher Richter’ (lawful judge),37 restricts the possibility of the distribution of cases amongst the courts: Article 101 GG [Ban on extraordinary courts] 1. 2.

Extraordinary courts shall not be allowed. No one may be removed from the jurisdiction of his lawful judge. Courts for particular fields of law may be established only by law.38

The degree of detail here means that this system has less flexibility than other legal systems with respect to the integration of change. For example, this affects the possibility of specialisation within the judicial system in order to increase the effectiveness and efficiency of the judicial process.39 With regard to the topic of judicial globalisation, liberal-democratic Constitutions define the balance of powers in Western legal systems, including the role of the judicial branch in this balance. These Constitutions thus encompass the basic requirements regarding the functioning and the institutional set-up of the national judicial system, in which the highest courts are encompassed. As concerns the catalysis of the effects of globalisation, the Constitution can also contain rules regarding the status and conditions of application of international and supranational law within the national legal system.40

B. Modalities for Revision of the Constitution Secondly, the (in-)flexibility of a specific constitutional framework is determined by the stringency of the requirements imposed for revision of the Constitution. In the academic literature, the distinction between ‘flexible’ and

35

See below, IIC. Grundgesetz 1949 (Germany), arts 92–104. 37 See M Fabri and PM Langbroek, ‘Is There a Right Judge for Each Case? A Comparative Study of Case Assignment in Six European Countries’ (2007) 1 European Journal of Legal Studies 2, 6. 38 Grundgesetz 1949 (Germany), art 101 (official translation published by the Deutscher Bundestag, 2010, www.btg-bestellservice.de). 39 Mak, De rechtspraak in balans (n 20) ch 6. 40 See further below, IID. 36

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Understanding the Development of Highest Courts’ Practices

‘rigid’ Constitutions has been connected with this aspect of constitutional frameworks. Ferreres-Comella has observed that: A Constitution is said to be formally ‘rigid’ to the extent that it can only be amended through political procedures that are more complex than those that are followed for the enactment and repeal of ordinary legislation. A flexible Constitution, in contrast, can be amended following the ordinary procedure.41

With regard to the broader concept of constitutional (in-)flexibility, a complicated procedure for constitutional revision will mean that it is relatively difficult to integrate normative change into a specific constitutional framework. A procedure with less stringent requirements will entail more flexibility within the constitutional framework in question. These requirements concern both the number of political actors involved in the amending process, and the percentage of votes needed for the amendment to be passed by Parliament.42 Some examples illustrate this second factor of constitutional (in-)flexibility. The Dutch and French Constitutions, for example, demonstrate relatively little flexibility. The Dutch Constitution requires an amendment to be considered by Parliament twice. Furthermore, an amendment to the Constitution can only be adopted by a parliamentary supermajority.43 In France, a constitutional amendment requires either a supermajority in the Congrès (composed of both chambers of Parliament together) or a vote by referendum.44 The Constitution is not altered very frequently in either country. The last integral amendment to the Dutch Constitution took place in 1983. The French Constitution of 1958 has been amended just 24 times since its adoption, most recently by the Law of 23 July 2008, which, inter alia, introduced the competence to constitutionally review legislative acts.45 Compared with the Dutch and French systems, the German Constitution, by contrast, contains a relatively light amendment procedure. This procedure only differs from the normal legislative procedure in its requirement of a two-thirds voting majority for the amendment in the Bundestag and in the Bundesrat.46 Since 1949, the Grundgesetz has been changed more than 50 times, a frequency which has led one author to declare that ‘no constitution in the world’ has been changed as often.47

41 V Ferreres-Comella, ‘A Defense of Constitutional Rigidity’, in P Comanducci and R Guastini (eds), Analisi e diritto 2000. Ricerche di giurisprudenza analitica (Turin, G Giappichelli Publisher, 2000) 46. 42 Ibid 46–47. 43 Constitution 1983 (Netherlands), art 137. 44 Constitution 1958 (France), art 89. 45 Loi constitutionnelle no 2008-724 du 23 juillet 2008 de modernisation des institutions de la Ve République. 46 Grundgesetz 1949 (Germany), art 79(2). 47 A Ro nagel, Die Änderungen des Grundgesetzes. Eine Untersuchung der politischen Funktion von Verfassungsänderungen (Frankfurt am Main, 1981) 1; cited by Busch, ‘The Grundgesetz’ (n 30) 1.

Procedural Aspects of Legal Evolution 23 It is important to note that the constitutional modalities for the revision of the Constitution cannot be viewed separately from the constitutional conventions underpinning a specific legal system. Since the 1990s, constitutional amendments in France have become more frequent as a result of the effects of a political push to modernise the institutions of the state, as well as the need to incorporate changes related to the development of the European Union and international legal orders within the domestic legal system.48 In the German example, amendments to the Constitution took place at irregular intervals. Regular changes were made during the first 25 years of the existence of the Grundgesetz, followed by a period of relative stability lasting for 14 years, and then another peak which occurred as the result of the German unification.49 This suggests that alterations were made only when significant events in the social life of the community invited such changes. As a rule, the French and German legislative powers therefore seem to take a position of restraint regarding the modification of their Constitution. In this light, constitutional conventions regarding the use of the amendment procedure should be taken into account when measuring the (in-)flexibility of a specific legal system’s constitutional framework. Inversely, constitutional conventions can be affected by revisions of the fundamental rules of the legal system. The non-codified English Constitution, for example, was arguably modified by the adoption of the Human Rights Act 1998. A normal parliamentary majority was sufficient for the adoption of this Act,50 which introduced the possibility of judicial examination of the conformity of Acts of Parliament in light of the rights protected by the European Convention on Human Rights (ECHR). Although no power of annulment or non-application of legal provisions was granted to the courts, the courts were given the competence to issue a declaration of incompatibility of parliamentary Acts in light of the protected Convention rights.51 In practice, such a declaration is considered to put pressure on the legislator to rectify legislative acts. Therefore, the introduction of the Human Rights Act 1998 is considered by many to have had an impact on the principle of parliamentary sovereignty in the United Kingdom.52 This example reflects a nuanced interplay between gradually changing constitutional rules and conventions. Indeed, the introduction of the Human Rights Act 1998 could

48 For an overview of these revisions, see doc.sciencespo-lyon.fr/Ressources/Documents/ DocEnLigne/Constitutions/revision-constitution.html. 49 Busch, ‘The Grundgesetz’ (n 30) 45. 50 The Human Rights Act received royal assent on 9 November 1998. The text of the Act is available at www.legislation.gov.uk/ukpga/1998/42/contents. 51 Human Rights Act 1998, s 4. 52 See, eg AL Young, Parliamentary Sovereignty and the Human Rights Act (Oxford, Hart Publishing, 2009); A Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009). For a contrasting view, see Bingham, The Rule of Law (n 14) 165.

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only take place after a long and gradual ‘incubation’ of the idea of judicial human rights protection in the British legal system.53 Apart from the two previously discussed factors relating to the norms included in the Constitution, the (in-)flexibility of a Western legal system’s constitutional framework depends on two procedural factors regarding the interpretation and application of the Constitution.

C. Approach of the Interpreter of the Constitution The constitutional (in-)flexibility of a specific legal system depends on the approach to legal argumentation chosen by the interpreter of the Constitution. This interpreter can be the legislator who, through the preparation of legislative bills, will have to ensure that the Constitution is respected. The interpreter can also be the executive power, who exercises this function through the preparation of regulations. Finally, the interpretation of the Constitution can be assumed by the judicial branch.54 The interpretation of the Constitution will affect the accommodation of normative change within national legal systems depending on the argumentative approach chosen by the interpreting authority. The German Constitutional Court, for example, initially interpreted the Grundgesetz in such a way as to limit the impact of EU law within the national legal system regarding the standards of human rights protection.55 The Supreme Court of Canada, as another example, is considered to have stimulated normative change in the Canadian legal system through its interpretation of the Canadian Charter of Rights and Freedoms.56

53 Bingham, The Rule of Law (n 14) chs 7 and 12. Lord Bingham was a key player in this process of change. Regarding his role, see B Hale, ‘A Supreme Judicial Leader’, in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford, Oxford University Press, 2009). 54 Reservations regarding judicial review as opposed to legislative and executive constitutional decisions have been expressed by M Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ, Princeton University Press, 2000). 55 BVerfG 29 May 1974, Solange I [1974] 2 CMLR 540, 37 BVerfGE 271; BVerfG 22 October 1986, Solange II [1987] 3 CMLR 225, [1986] 73 BVerfGE 339. 56 See, eg P Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto, Carswell Legal Publications, 1987); ER Alexander, ‘The Supreme Court of Canada and the Canadian Charter of Rights and Freedoms’ (1990) 40 University of Toronto Law Journal 1; FM Bevilacqua, The Supreme Court of Canada: A Politically Legal Role: A Study of the Policy-Making Role of the Courts and the Impact of the Canadian Charter of Rights and Freedoms (Kingston (Ontario), Queen’s University, 1990). More references are available at www.scc-csc.gc.ca/court-cour/biblio/index-eng.asp.

Procedural Aspects of Legal Evolution 25 Since multiple actors (the legislative, the executive and the judicial branch) are involved in the interpretation of the Constitution, each of them can contribute to the (in-)flexibility of the constitutional framework of their legal system. For this reason, it is necessary to consider the relationship between these actors in the balance of powers at the domestic level. In this light, the examples concerning Germany and Canada show that the role of courts in accommodating normative changes can be very significant. Within the boundaries set by the Constitution, the courts hold part of the responsibility for establishing the meaning of the law. An important aspect of this competence concerns the interpretation of legislation in light of the fundamental rights protected by the Constitution. In many legal systems, the courts are allowed to strike down legislative provisions which do not conform to the Constitution. With the increased global emphasis on human rights protection, judiciaries in these systems have thus been ‘empowered’ vis-à-vis the other branches of government.57 It is true that the judicial annulment or non-application of legislative provisions for reason of their unconstitutionality is prohibited in other legal systems, such as the Netherlands and England.58 Still, in these systems, judicial review of legislation can take place for reason of fundamental rights protected by international treaties,59 thus allowing for the ‘rights revolution’60 to affect these legal systems as well. As with the previous factors of constitutional (in-)flexibility, constitutional conventions play a role alongside the Constitution. Interestingly, both the German and Canadian highest courts have been criticised for their judicial activism when striking down Acts of Parliament with an eye to the protection of fundamental rights.61 Deference to the legislator in the field of constitutional interpretation still appears to be a powerful constitutional convention.62 It should indeed be noted that the distribution of competences between the legislator and the judicial branch as regards law-making 57 R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004). 58 On different systems of judicial review in the world, see D Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, NJ, Princeton University Press, 2010); F Hamon and C Wiener, La justice constitutionnelle en France et à l’étranger (Paris, LGDJ, 2011). 59 See below, IID. 60 M de S-O-l’E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009). 61 Concerning the Bundesverfassungsgericht, see EL Barnstedt, ‘Judicial Activism in the Practice of the German Federal Constitutional Court: Is the GFCC an Activist Court?’ (2007) 8 Juridica International 38. Concerning the Supreme Court of Canada, see RI Martin, The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy (Montreal, McGill-Queen’s University Press, 2005). 62 Regarding the role of national Parliaments in the protection of fundamental rights, see V Barbé, Le rôle du Parlement dans la protection des droits fondamentaux: Etude comparative: Allemagne, France, Royaume-Uni (Paris, LGDJ, 2009).

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is a central element of the constitutional culture of liberal-democratic legal systems. This is expressed most clearly in the specific constitutional conventions of these systems.63 Legal systems can be classified according to their conformity to the parliamentary or British model, which is based on the unassailability of legislative acts, or to the constitutional or American model, which allows for judicial review of legislative acts.64 An in-between solution is also possible: the constitutional framework can encompass a degree of flexibility regarding the distribution of competences between the branches of government. In the Canadian legal system, for example, the use of the notwithstanding clause makes it possible to render legislative acts temporarily immune from judicial review in light of certain fundamental rights: Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.65

Within the constitutional framework, the use of interpretative competences by the legislator and the judicial branch thus takes place in light of either the principle of sovereignty of Parliament or the principle of judicial review, or sometimes through a balance of these two principles. Furthermore, the use of judicial interpretation depends on the postures or ‘philosophies’ of individual judges regarding their scope of discretion when deciding difficult cases.66 The mix of approaches on a specific panel of judges has an influence on the court’s choice between an activist approach and an approach of judicial restraint in individual cases. The development of institutional legal arrangements through interpretative approaches thus is enabled or constrained not only by the constitutional rules regarding the interpreters’ competences, but also by the constitutional conventions which underpin these rules.

D. Impact of International Law in the Domestic Legal System Finally, the fourth factor determining constitutional (in-)flexibility concerns the role granted to international law in the national legal system. It can be regarded as the ‘distinctive function’ of Constitutions to consider

63 Concerning legal culture, see, eg E Blankenburg, ‘Patterns of Legal Culture: The Netherlands Compared to Neighbouring Germany’ (1998) 46 American Journal of Comparative Law 1. 64 See also Koopmans, Courts and Political Institutions (n 15). 65 Canadian Charter of Rights and Freedoms, s 33. 66 A Barak, The Judge in a Democracy (Princeton, NJ, Princeton University Press, 2006) 118. See Chapter 4, IIB.

Procedural Aspects of Legal Evolution 27 the internal relations within the state, as well as the relations between the national and the transnational legal community.67 Through the application of international law in the domestic legal system, normative changes integrated within international legal rules and principles can take effect at the national level. Two main models which give shape to this implementation of international law can be identified.68 First, dualist mechanisms require the transposition of international treaties into national legislation. Examples of such mechanisms can be found in the British, Canadian and US legal systems. Monist mechanisms, by contrast, enable international legal norms to gain effect in the national legal order after the ratification and promulgation of an international treaty. Examples of this can be found in the Netherlands and in France.69 Concerning the European Union, a specific mechanism of legal integration has developed in EU Member States in light of the supranational character of primary EU law.70 International legal rules which give expression to specific normative changes can catalyse the expression of these changes at the level of national legal systems. International law, in this respect, can cause a process of change to begin. This catalysis takes place through the taking into account of international legal rules by the legislator when elaborating legislative Bills. More importantly, international law has an impact on legal development when treaty provisions are used by national courts to set aside legislation in individual cases.71 In this respect, normative change can be integrated relatively easily into legal systems in which many international legal rules have authority, either through their direct effect or through their transposition into national law. In particular, the membership of influential supranational or international organisations, such as the European Union and the Council of Europe, creates a necessity for national institutions of government to facilitate the integration of European legal rules into the national legal system and, in this context, to rethink and adapt the normative framework of the national legal system in light of European rules and standards. Regarding the content of the law, international legal norms may therefore provide an important underpinning or update to the normative framework of national legal systems. This is shown, for example, by the influence of the ECHR upon the Council of Europe’s member states. The

67 VC Jackson, Constitutional Engagement in a Transnational Era (Oxford, Oxford University Press, 2009) 8. 68 See, eg MA Waters, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 3. 69 Constitution 1983 (Netherlands), arts 93 and 94; Constitution 1958 (France), art 55. 70 See, eg M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) ch 7. 71 In this respect, regard should be had to the relation between the judge and the legislator in the context of judicial review; see above, IIC.

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application of the Convention by courts in the member states and by the European Court of Human Rights (ECtHR) has given rise to significant changes in specific fields of national law, for example, through the application of Article 6 ECHR (the right to a fair trial) and Article 8 ECHR (the right to family life).72 With the description of this fourth factor, the first part of the theoretical framework of constitutional (in-)flexibility has been outlined. These four factors together might be able to explain the form and speed of the integration of normative change in liberal-democratic legal systems from a procedural perspective. However, in order to assess the framework’s explanatory value as regards legal evolution, an analysis is required of possible explanatory factors of a substantive nature, too.

III. SUBSTANTIVE ASPECTS OF LEGAL EVOLUTION

The analysis in the previous section focused on the procedural aspects of legal evolution. It was established that constraints and possibilities for normative change can materialise in constitutional norms and in the scope of interpretation of these norms. However, it should be investigated whether other explanatory factors can be found in the specific characteristics of national legal systems. Can such characteristics constrain or enable the integration of normative change into national legal systems, too? Concerning the development of the judicial decision-making of highest courts in Western legal systems, the following factors can be considered to be possibly relevant: the democratic justification of judicial decisions; legal tradition; the nature of cases; and the efficiency of judicial decision-making. The possible role of these factors will be clarified in the next paragraphs.

A. Democratic Justification of Judicial Decisions The functioning of the highest national courts in Western legal systems contains a problematic aspect, in the sense that judges in these courts are appointed, not elected. For this reason, the highest courts do not enjoy the direct democratic legitimation of their decisions that national Parliaments have with regard to enacted laws. When considering the judicial use of foreign law, this democratic legitimacy could pose a problem in two ways. The justification

72 See, eg AM Slaughter, A Stone Sweet and JHH Weiler (eds) The European Court and National Courts: Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford, Hart Publishing, 1998); 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).

Substantive Aspects of Legal Evolution 29 of judicial decisions could be endangered, first, by the contestation of the authority of sources consulted by the courts; and, secondly, by the contestation of the judicial competence vis-à-vis the legislative branch. (i) Authority of the Consulted Sources With regard to the nature of the sources used in judicial decision-making, a distinction can be made between binding foreign legal sources, in particular international treaties, and non-binding foreign law, for example the case law of national courts in other jurisdictions. Binding sources have obtained authority in a national legal system through their implementation in this system. These sources have been accepted as sources of national law, through a procedure involving the national government and Parliament. For this reason, a democratic justification for the use of these sources in judicial decision-making can be identified.73 In this respect, an assumption to be tested in this research is whether the use of binding and non-binding foreign law is accepted more easily in legal systems in which the incorporation of foreign influences seems to occur in a more ‘natural’ way when compared to other legal systems.74 This could be the case for monist legal systems, which do not require a transposition of international legal norms into domestic legislation, when compared with dualist legal systems, which do require this transposition.75 Taking this idea a step further, the growth of the supranational EU legal order might have created more openness in EU Member States concerning the use of foreign legal sources in light of the aim of harmonisation of laws. In this respect, the qualitative analysis in this book will include an inquiry into the developments in EU Member States when compared with other liberal democracies, such as the United States and Canada. Moreover, the analysis will address the similarities and differences between selected EU Member States concerning the development of judicial approaches to the use of international and comparative law in these states. However, the question of the authority of sources for judicial decisionmaking is more complicated than the positivist distinction between sources which have and sources which have not been approved as binding sources of domestic law by the competent national authorities. Analyses of judicial approaches in case law, for example concerning the use of comparative law by the US Supreme Court, demonstrate that the authority of legal sources is connected to the development of the use of these sources. In an informal and incremental process, a source will often become less or more binding 73

Cp Hart, The Concept of Law (n 8). Concerning the possible procedural explanation of legal evolution to be found in the impact granted to international law in national legal systems, see above, IID. 75 Ibid. 74

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in proportion to the frequency with which use is made of this source in the deciding of cases.76 The underlying issue is whether the recourse to a source of law is considered desirable or not. In this respect, arguments in favour of and against the use of non-binding foreign law have been formulated by judges, academics and political actors on the basis of diverse normative points of view. It has been argued that disagreement on this topic can be traced back to attitudes concerning the role of judges, such as pragmatist and legalist views or liberal and conservative views.77 In the globalised legal context, judicial attitudes concerning the appropriate practices of highest national courts can be considered to translate into globalist and localist views.78 The research in this book will start out from the idea that globalist judges focus on the possibilities of finding inspiration in other jurisdictions for the solution of shared legal questions. We will assume that these judges feel that in hard cases it is their duty to search for the best interpretation of relevant concepts and principles, using all sources which could be relevant for this interpretation.79 From this perspective, foreign law can provide useful insights and guidance in the search for a solution of domestic cases. We will assume that localist judges can take two different views on the use of foreign law. First, they might contest the competence of the national courts to use materials which are not formally binding as a source for judicial decision-making at the domestic level.80 Secondly, they might point out the limitations of the comparative approach in light of the cultural differences between legal systems.81 Further depth will be given to our analysis through an investigation of the motives that judges have for adopting either a globalist or a localist view about the use of foreign law in judicial decision-making. In this regard, Vicki Jackson has argued that the approaches of courts in different jurisdictions concerning the internationalisation of judicial decision-making represent three different postures: the resistance to global influences, the aspiration of cross-border convergence of legal rules, and the engagement with foreign legal sources as ‘interlocutors’ in judicial decision-making.82 We will assume that localist judges take a posture of resistance to the use of

76 M Adams, ‘Globaliserende rechtspraak: democratisch omstreden?’ (2012) 61 Ars Aequi 531, 534. See also F Schauer, ‘Authority and Authorities’ (2008) 94 Virginia Law Review 1931. 77 Adams, ‘Globaliserende rechtspraak’ (n 76) 535. 78 Ibid. See also Chapter 4, IIB. 79 Cp Dworkin, Law’s Empire (n 8). 80 Cp Hart, The Concept of Law (n 8). 81 See, eg M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford University Press, 2008); M Adams and J Bomhoff (eds), The Theory and Practice of Comparative Law (Cambridge, Cambridge University Press, 2012). In the field of constitutional law, see R Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53 American Journal of Comparative Law 125. 82 Jackson, Constitutional Engagement (n 67).

Substantive Aspects of Legal Evolution 31 foreign law and that globalist judges will represent postures of convergence or engagement. In light of the above observations, the qualitative analysis in this book will be used to clarify to what extent the normative points of view of highest court judges have an influence on their use of foreign law. Moreover, we will examine to what extent these individual points of view are connected with contextual factors, such as the national legal culture, and the judges’ training, professional experience and social background. (ii) Nature of the Judicial Competence The difference between supreme courts and constitutional courts might be of relevance to the research, too. Supreme courts stand at the apex of national court systems and fulfil the function of guaranteeing the uniform interpretation of the law within the national legal system.83 This function leaves the primary competence of law-making with the legislative branch, which is composed of the chosen representatives of the people. In this way, a division of public power is realised which ensures the democratic character of the development of general rules for the legal system. However, a tension exists with regard to the delimitation of the judicial function. After all, in practice there is only a thin line between the discovery of the correct interpretation of laws enacted by the legislator and the formulation of new legal rules by the courts.84 This problem of democratic justification is even more significant with regard to the exercise of judicial review of parliamentary acts. This function, if acknowledged in a national legal system, can be part of the general competence of all the courts in this legal system (diffuse review) or it can be assigned to a constitutional court established for this purpose (concentrated review).85 The possibility of a judicial annulment of a legislative provision, found to be in violation of constitutional norms, has been considered problematic in light of the democratic justification of such an annulment.86 This vulnerability of the judicial review system is reinforced by the nature of the cases brought before constitutional courts. This nature is such that constitutional cases, for example, cases brought before the German Bundesverfassungsgericht, the French Conseil constitutionnel

83

See further Chapter 4, I. Ibid. 85 H Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183. 86 See in particular J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346. Counter-arguments have been presented, inter alia, by EV Rostow, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law Review 193; AP Le Sueur, ‘The Judges and the Intention of Parliament: Is Judicial Review Undemocratic?’ (1991) 44 Parliamentary Affairs 283; A Lever, ‘Is Judicial Review Undemocratic?’ (2007) Public Law (Summer) 280. 84

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or the US Supreme Court, will often relate to political questions concerning the protection of fundamental rights or the organisation of government. In this light, the use of foreign law might be criticised more if it occurs in a judicial review procedure by a constitutional judge than if foreign legal sources are used in a procedure before a supreme court. Indeed, the contested democratic legitimacy of judicial review and the political nature of a case could increase the societal sensibility regarding the authority of the sources used in the process of judicial decision-making. In the next chapters, it will be examined whether the hypotheses formulated here can be validated. This analysis will generate a clearer answer to the question whether, and, if so, under which circumstances, foreign legal sources can play a role in the judicial decision-making of highest national courts. In particular, the views and experiences of judges will clarify whether the nature of the consulted sources and the nature of the judicial competence are relevant factors in approaches to judicial decision-making in the globalised legal context.

B. Legal Tradition An important classification of Western liberal democracies concerns the distinction between legal systems which belong to the common law tradition and legal systems which belong to the civil law tradition.87 This distinction seems to be important with regard to the authority attributed to case law in the decision-making of highest national courts. In the common law tradition, the doctrine of stare decisis guides the interpretation of the law by the highest courts. The highest courts in principle follow their own prior decisions when judging later cases (horizontal precedent). Furthermore, the trial courts within a specific jurisdiction are bound by the judgments on questions of law issued by the higher courts in that jurisdiction (vertical precedent).88 Notwithstanding this apparently clear doctrine of precedent, the case law of courts in common law jurisdictions demonstrates that judicial practice is more complex. Concerning the highest courts, the Statement of Practice of the House of Lords, issued in 1966, has enabled a more flexible use of precedent by the supreme courts in Commonwealth countries. On the basis of this Statement, supreme courts have considered a departure from their own prior decisions in some cases 87 HP Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 3rd edn (Oxford, Oxford University Press, 2007) chs 5 and 7. 88 F Schauer, ‘Precedent’ in A Marmor (ed), The Routledge Companion to Philosophy of Law (London, Routledge, 2012). See also U Mattei, Stare Decisis: Il Valore del Precedente Giudiziario negli Stati Uniti d’America (Milan, Giuffrè, 1988); DN MacCormick and RS Summers (eds), Interpreting Precedents: A Comparative Study (Dartmouth, Dartmouth Publishing Co Ltd, 1997).

Substantive Aspects of Legal Evolution 33 in which a party had argued that compelling reasons for a reversal of the case law existed.89 However, the supreme courts do not seem to have a consistent approach concerning the question when a reversal of precedent is appropriate.90 Indeed, a controversy exists in the United States concerning the question whether the US Supreme Court actually follows its past decisions.91 In civil law systems, no formal system of precedent exists. However, persuasiveness can be identified as an element in the approach of courts in these systems with regard to previously decided cases.92 In practice, judgments of the highest national courts, for example in the Netherlands or in France, regularly feature as ‘informal precedent’ in later decisions of these courts and in general are followed by the courts of first instance and the courts of appeal in their decision-making.93 The judgments of courts in foreign jurisdictions, in principle, do not have binding force in other jurisdictions. This is the case regardless of whether these are common law systems or civil law systems. Nonetheless, in the globalised legal context it might be assumed that foreign judgments are sometimes consulted to find persuasive arguments for the deciding of domestic cases. Courts in different jurisdictions might look to each other’s case law in order to find arguments to assist the decision-making in their own cases. Through regular use, these foreign judgments could incrementally become binding sources for the judgment of domestic cases.94 In the qualitative analysis of the views and experiences of highest court judges, it will be examined to what extent the idea of persuasive precedents has an effect on judicial practices concerning the use of comparative law in judicial decision-making. Furthermore, the analysis will include an inquiry into the criteria used by judges when selecting foreign case law for a comparison. It might be assumed that, inter alia, a shared normative framework of government, a shared legal tradition, or a shared historical background can be influential in this respect.

89 See, eg the judgments of the Supreme Court of Canada in R v Henry [2005] 3 SCR 609 (precedent reversed) and Ontario (Attorney General) v Fraser [2011] 2 SCR 3 (majority against reversal of a precedent). 90 Concerning the UK Supreme Court, see J Lee, ‘The Doctrine of Precedent and the Supreme Court’ (Inner Temple Academic Fellow’s Lecture, London, 23 April 2012). 91 S Brenner and HJ Spaeth, Stare Indecisis: The Alteration of Precedent on the Supreme Court, 1946–1992, 2nd edn (Cambridge, Cambridge University Press, 2006). 92 M Cappelletti, ‘The Doctrine of Stare Decisis and the Civil Law: A Fundamental Difference—or No Difference at All?’, in H Bernstein et al (eds), Festschrift Konrad Zweigert (Tübingen, Mohr, 1981). 93 V Fon and F Parisi, ‘Judicial Precedents in Civil Law Systems: A Dynamic Analysis’ (2006) 26 International Review of Law and Economics 519. 94 See above, IIIA. See also J Bell, ‘The Argumentative Status of Foreign Legal Arguments’ (2012) 8(2) Utrecht Law Review 8.

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C. Nature of Cases An assumption could be that the use of foreign law will develop more easily in cases containing a clear international aspect than in cases which do not contain such an aspect. This international nature of cases can be related to the nationality of the parties or the subject matter of the case. A clear example is formed by cases in the field of international private law, which can entail questions about the competent judge and about the applicable law. In human rights cases, as another example, the applicability of international treaties and the case law of international courts will oblige national courts to consider binding international legal sources. The deliberations about these sources might open the door to a more extensive study of foreign legal sources, for example the judgments of national courts in foreign jurisdictions which have interpreted the applicable international case law in previous cases. Still, reasons for the use of foreign law in cases which do not contain an international aspect can be identified, too. The study of foreign legal sources might be helpful, for example, for the deciding of difficult cases which have not been brought before the national courts in a specific legal system before. In such cases, it will be difficult for judges to find a yardstick for the judgment in the domestic law. If a similar case has been judged already by a national court in another jurisdiction, this judgment could provide guidance for the deciding of the new case. The qualitative analysis in the next chapters will demonstrate whether the nature of cases indeed plays a role with regard to the use of foreign law by highest national courts. If this proves to be true, the analysis will also clarify which types of cases lend themselves most easily to the use of foreign law in the judicial deliberations and the reasoning of the judgment.

D. Effectiveness and Efficiency of Judicial Decision-Making The functioning of highest national courts in liberal democracies is determined not only by classic liberal-democratic principles, such as the guarantees of judicial independence and impartiality and the abovementioned requirements related to the principle of democracy and national legal tradition. The highest courts, like all national courts, are also subject to standards concerning the effectiveness and efficiency of judicial proceedings. Such standards can be identified in Article 6 ECHR, which states that the right to a fair trial encompasses the individual’s entitlement to a hearing ‘within a reasonable time’. More generally, it can be noted that an increasing emphasis on the effectiveness and efficiency of judicial functioning has occurred in Western liberal democracies under the influence of theories of ‘New Public Management’. These theories have been used in judicial

Conclusion

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reforms in Western-European countries since the 1980s and 1990s in order to find adequate solutions for the organisation of judicial decision-making in the current complex societal and legal context, for example through a restructuring of court management or increased specialisation within the judiciary.95 When relating the above to the topic of this research, it can be argued that the use of non-binding foreign law by highest national courts might have a negative effect on the effectiveness and efficiency of the decisionmaking of these courts. After all, the research of foreign legal sources and the discussion of these sources in judicial deliberations might not yield arguments which are essential to the deciding of the case. Furthermore, this research might be time-consuming. Still, the effectiveness of the judicial decision-making could increase if the research of foreign law yields substantial input for the deciding of a case. Besides these considerations of principle, it is likely that the possibilities for highest courts to engage in the study of foreign law will be limited by practical constraints. Such constraints may concern the knowledge of foreign languages, the access to foreign legal sources, and the availability of assistance with the conduct of comparative legal research. The qualitative research in the next chapters will clarify to what extent these considerations of principle and these practical constraints play a role in the approaches of judges regarding the use of foreign law.

IV. CONCLUSION

The analysis in this chapter has resulted in the identification of procedural and substantive factors which arguably contribute to the explanation of the development of the practices of Western highest courts in the globalised legal context. In Chapter 6, this analytical framework will be connected with the qualitative study of the highest national courts in the United Kingdom, Canada, the United States, France and the Netherlands. The results of this qualitative study will now first be presented, starting in the next chapter with the introduction of the examined highest courts and the comparative and empirical research methodology.

95 Mak, De rechtspraak in balans (n 20). See also GY 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).

3 Introducing the Comparative and Empirical Analysis

H

IGHEST COURTS SHARE a feature: they have final jurisdiction in cases which have arisen in their specific territorial and functional area of competence. However, this common feature has been integrated in a wide variety of organisational forms in highest courts around the world, making each highest court unique in its kind. In this chapter, the particular features of the highest courts included in the current research will be addressed to set the scene for the comparative and empirical analysis in the next chapters. This chapter is organised in four parts. First, the courts which fit the Anglo-Saxon model, characterised by a single highest court at the apex of the judicial system, are considered. The courts studied are the Supreme Court of the United Kingdom, the Supreme Court of Canada and the Supreme Court of the United States. Secondly, the analysis focuses on the courts which fit the French model, in which multiple highest courts exist next to each other. In this context, the highest courts of France and the Netherlands are presented. This introduction of the examined courts is followed, thirdly, by a brief comparative overview of the most significant similarities and differences concerning the jurisdiction and organisation of the courts. Fourthly, the empirical methodology of the research is outlined. Some final remarks conclude the chapter.

I. ANGLO-SAXON MODEL: A SINGLE HIGHEST COURT (UNITED KINGDOM, CANADA, UNITED STATES)

The Anglo-Saxon legal systems are closely tied by historical connections relating to the former British Empire. Moreover, the further development of the common law is still an important responsibility of the judges in the Commonwealth, and engages to a lesser extent also the judges in the United States. The highest courts in the Anglo-Saxon legal systems play an important role as the final interpreter of the law at the national level, and as participants in the development of the law across national borders. Because of their shared heritage, the highest courts in the United Kingdom, Canada

Anglo-Saxon Model

37

and the United States are similar in the main aspects of their jurisdiction and organisation. However, some important differences exist as well, which will be discussed hereunder. The analysis will focus on three key features of jurisdiction and court organisation: the competences of review, the composition of the courts and the system of case selection.

A. Competences of Review (i) UK Supreme Court The Supreme Court for the United Kingdom was established in 2009 to replace the Appellate Committee of the House of Lords, which dated from 1876 and had origins as far back as the fourteenth century.1 This reform, set in motion by the Constitutional Reform Act 2005, can be seen as ‘the last step in the separation of powers’ in the British legal system.2 The Supreme Court is based in the Middlesex Guildhall in London, opposite the Houses of Parliament. The UK Supreme Court’s jurisdiction regards the final appeal of civil cases in the United Kingdom and criminal cases in England, Wales and Northern Ireland.3 No constitutional review of legislative acts exists, but the Human Rights Act (HRA) 1998 goes a long way in this direction. This Act introduced the judicial competence to declare Acts of Parliament incompatible with fundamental rights provisions transposed from the European Convention on Human Rights (ECHR).4 (ii) Supreme Court of Canada The Supreme Court of Canada was established in 1875. The Court, which is based in Ottawa, is currently housed in a striking square-shaped building constructed in the 1940s. It is the final court of appeal for cases judged in the last resort by the lower courts in Canada. Usually, appeals concern 1 See www.supremecourt.gov.uk/about/appellate-committee.html. Concerning this historical background, see, inter alia, R Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (London, Weidenfeld and Nicolson, 1979); R Stevens, The English Judges: Their Role in the Changing Constitution (Oxford, Hart Publishing, 2002); L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009). 2 ‘UK Supreme Court judges sworn in’, BBC News (London), 1 October 2009, available at news.bbc.co.uk/2/hi/uk_news/8283939.stm. 3 The judges of the Supreme Court also sit on the Judicial Committee of the Privy Council (JCPC), which is the final court for cases from Commonwealth jurisdictions; see www.jcpc. gov.uk. Some of the former and current judges of the Supreme Court are Non-Permanent Judges of the Court of Final Appeal of Hong Kong; see www.judiciary.gov.hk/en/organization/ judges.htm. 4 See Chapter 4, IA, and Chapter 5, IA.

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Introducing the Comparative and Empirical Analysis

judgments of a provincial or territorial court of appeal or of the Federal Court of Appeal.5 The Supreme Court is the appellate court in all civil and criminal cases.6 The province of Québec has a mixed legal system, with criminal cases following the common law tradition and civil cases following the civil law tradition. All other provinces and territories belong to the common law tradition. The Supreme Court’s role changed significantly after the entry into force of the Canadian Charter of Rights and Freedoms in 1982, which has emphasised the role of the court as the protector of the fundamental rights of individuals, and in light of which the Supreme Court can annul legislative and executive acts.7 The judgments of the Supreme Court of Canada used to be susceptible to appeal to the Judicial Committee of the Privy Council. However, this possibility ceased to exist for criminal appeals in 1933, after the adoption of the Statute of Westminster in 1931, and for civil appeals after a reform of the Supreme Court Act in 1949.8 An interviewed judge pointed out that judgments of the British highest courts have not been considered binding on the Canadian courts since the 1920s, when Canada established its independence from the British colonial power. (iii) US Supreme Court The Supreme Court of the United States was established by the Judiciary Act of 24 September 1789, on the basis of Article III(1) of the Constitution. The Court was organised on 2 February 1790.9 It is located in Washington, DC, and housed there in a well-known marble building in ‘classical Corinthian architectural style’,10 adorned with the inscription ‘Equal Justice under Law’. Differently from the Supreme Courts of the United Kingdom and Canada, the US Supreme Court is not the supreme national court for all cases. Each state has its own supreme court and the Supreme Court has only a limited jurisdiction at the federal level. The jurisdiction of the US Supreme Court concerns the judgment of cases arising under the Constitution, laws or treaties to which the United States is a party. The Supreme Court exercises original jurisdiction in disputes between states, and between states and the United States as a party, for example concerning boundaries and water rights. The Court’s original jurisdiction further concerns the small 5

See www.scc-csc.gc.ca/court-cour/role/index-eng.asp. Supreme Court Act 1985 (Canada), s 35. 7 See Chapter 4, IA, and Chapter 5, IIB. 8 See www.scc-csc.gc.ca/court-cour/creation/index-eng.asp. See further GP Browne, The Judicial Committee and the British North America Act (Toronto, University of Toronto Press, 1967). 9 See www.supremecourt.gov/about/briefoverview.aspx. 10 See www.supremecourt.gov/about/courtbuilding.aspx. 6

Anglo-Saxon Model

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category of cases in which ambassadors, other public ministers or consuls are involved.11 The Court’s appellate jurisdiction, which generates the largest part of the Court’s caseload, concerns the other categories mentioned in the Constitution.12 Cases on appeal can come from the lower federal courts. Many of the cases taken up by the Supreme Court concern ‘circuit splits’, in which federal courts of appeals have reached conflicting results.13 Cases can come from a highest state court, too, but only if a substantial federal question is involved.14 The Constitution does not explicitly confer the competence of judicial review of the constitutionality of legislation on the Supreme Court. This competence was invoked for the first time by Chief Justice Marshall in the landmark decision in Marbury v Madison in 1803.15

B. Composition: Judges and Staff (i) UK Supreme Court At the time of the interviews, the UK Supreme Court was composed of 11 judges. Most of these judges were former Law Lords, who took up office in the new Supreme Court in October 2009. The twelfth position in the Court was filled up by the appointment of Sir John (now Lord) Dyson as Justice of the Supreme Court in 2010. Following the untimely death of Lord Rodger and the retirement of Lord Collins and Lord Saville, three new judges were appointed in 2011. Lord Wilson was sworn in in May 2011 and Lord Sumption in January 2012. The new Scottish judge, Lord Reed, was appointed in December 2011 to take the place of Lord Rodger. Lord Brown, who retired in April 2012, was succeeded by Lord Carnwath, a former judge of the Court of Appeal.16 Lord Phillips retired in September 2012 and Lord Neuberger was appointed as the new President of the Supreme Court.17

11

Constitution 1787 (US), art III(2). Ibid art III(2). An interviewed judge clarified that the Supreme Court does not decide cases between citizens of different states. Although the Constitution mentions this competence, the absence of a general federal common law prevents the Court from taking up cases of this kind. See further 28 USC s 1251 ff. 13 For details about the Court’s caseload, see below, IC. 14 28 USC ss 1254 and 1257. 15 Marbury v Madison, 5 US (1 Cranch) 137 (1803). 16 See www.supremecourt.gov.uk/about/biographies-of-the-justices.html. 17 UK Supreme Court, ‘Press Notice: Lord Phillips, President of the Supreme Court, to retire next summer’ (London, 11 October 2011), available at www.supremecourt.gov.uk/ docs/pr_1110.pdf; UK Supreme Court, ‘News Release: New President of the Supreme Court’ (London, 12 July 2012), available at www.supremecourt.gov.uk/news/new-president-of-thesupreme-court.html. 12

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Introducing the Comparative and Empirical Analysis

In the selection of new Supreme Court judges, it must be ensured that expertise concerning the law of each of the parts of the United Kingdom is available.18 Moreover, the President of the Supreme Court may ask ‘senior territorial judges’ of the Court of Appeal of England and Wales, the Scottish Court of Session and the Court of Appeal of Northern Ireland to sit as ‘acting judges’ of the Supreme Court beside the 12 permanent Justices.19 The UK Supreme Court is considered to be more visible to the general public than its predecessor, the Law Lords. This higher public profile is expected to have an impact on the appointment of new judges, as the personal characteristics of the judges and the diversity of the Court are expected to become bigger issues.20 Indeed, debate has taken place in the last years about the appointment of a Supreme Court judge coming directly from the Bar, which had not happened for 60 years.21 Cases in the UK Supreme Court are judged by a panel of five judges, and occasionally, at the discretion of the President, by a panel of seven or nine judges.22 Criteria used when considering a larger panel are: the possibility of a reversal of the case law; the constitutional importance of the case; the public importance of the case; the need to reconcile a conflict of the case laws of the House of Lords, the Privy Council and the Supreme Court; and the need to consider an important question in light of the ECHR.23 The use of a larger panel was considered desirable by some of the interviewed judges in order to avoid inconsistencies between panels. However, this is difficult to realise because of the time constraints the Court has to deal with. The judges have support from seven judicial assistants, who work cooperatively. Judicial assistants are appointed for one judicial year, which runs from the beginning of September until the end of July. Their task is to carry out research regarding pending cases, and to summarise applications for permission to appeal.24 (ii) Supreme Court of Canada The Supreme Court of Canada is composed of nine judges: the Chief Justice of Canada and eight puisne Judges. The judges are appointed by the Governor in Council, who is the Governor General of Canada acting on the 18

Constitutional Reform Act 2005, s 27(8). Ibid s 38. 20 F Gibb, ‘Supreme Court opens as fears raised of US-style selection of judges’, The Times (London), 1 October 2009, available at www.thetimes.co.uk/tto/law/article2215020.ece. 21 C Coleman, ‘Jonathan Sumption QC appointed Supreme Court judge’, BBC News, 4 May 2011, available at www.bbc.co.uk/news/uk-13287255. 22 For an overview, see UK Supreme Court, The Supreme Court Annual Report and Accounts 2009–2010, 24–25, available at www.supremecourt.gov.uk/docs/ar_2009_10.pdf. 23 See www.supremecourt.gov.uk/procedures/panel-numbers-criteria.html. 24 Applications for seven temporary posts of judicial assistants for the term of 10 September 2012 until 31 July 2013 were solicited through the Supreme Court’s website in March 2012. 19

Anglo-Saxon Model

41

advice of the federal cabinet.25 In order to be eligible to become a Supreme Court judge, candidates have to be a superior court judge or a barrister of at least 10 years’ standing at the Bar of a province or territory. Judges can sit in the Supreme Court until the age of 75 years.26 Three judges need to be appointed from Québec.27 It has become a tradition that three judges are appointed from Ontario, two from the West, and one from Atlantic Canada.28 In comparison with other Western highest courts, the number of female judges on the Supreme Court is remarkable. At the time of the interviews for this research, four of the nine judges were women, including Chief Justice Beverley McLachlin.29 In recent years, criticism of the selection process of Supreme Court judges has resulted in a number of reforms aimed at the creation of more transparency and the decrease of the influence of politics on the appointments of judges.30 Cases in the Supreme Court of Canada are judged by a minimum of five judges.31 However, in most cases the judicial panel is composed of seven or nine judges.32 Each judge is assisted by three law clerks, who provide research assistance. Similarly to the judicial assistants at the UK Supreme Court, these law clerks usually are recent law graduates, and they are appointed for one year.33 (iii) US Supreme Court The US Supreme Court is composed of one Chief Justice and eight Associate Justices. Although the number of Associate Justices may be altered by Congress,34 the size of the Court has been the same for a long time and from a political and practical perspective it would be almost impossible for Congress to change this. Justices are appointed by the President of the United States, with the advice and consent of the Senate.35 The justices are appointed for life, but they can retire or resign. Justices can be impeached in case of violating the constitutional provision stating that they ‘shall hold their offices during good behaviour’.36

25

Supreme Court Act 1985 (Canada), s 4(2). Ibid s 9(2). 27 Ibid s 6. 28 DR Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (Toronto, University of Toronto Press, 2008) 21. 29 See www.scc-csc.gc.ca/court-cour/ju/cju-jua-eng.asp. 30 Songer, The Transformation of the Supreme Court of Canada (n 28). 31 Supreme Court Act 1985 (Canada), s 25. In exceptional circumstances, the quorum can consist of four judges; see ibid, ss 28(2) and 29. 32 See www.scc-csc.gc.ca/faq/faq/index-eng.asp#f9. 33 See www.scc-csc.gc.ca/court-cour/administration/index-eng.asp. 34 28 USC s 1. 35 Constitution 1787 (US), art II(2). 36 Ibid art III(1). 26

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Introducing the Comparative and Empirical Analysis

In a lecture for a British audience, Justice Ginsburg remarked that concerning the appointment of judges to the UK Supreme Court she ‘would not suggest going down “the American road” on the appointment of judges, a system Lord Phillips said he would totally oppose, and for good reason’.37 Lord Phillips’s particular concern was with the possible politicisation of the UK Supreme Court.38 The appointment process for US Supreme Court Justices is indeed notorious for its political aspects. The current judges are all high-profile figures in the US legal debate, as well as in the public debate. Their nominations and confirmation hearings have been followed and analysed by many.39 During the hearings of the most recently appointed judges, ideas expressed by the nominees concerning their view on the use of foreign law in judicial decision-making were amongst the more controversial aspects regarding their appointment.40 Cases in the US Supreme Court are heard by a minimum number of six of the judges.41 Normally, the number will only be less than nine when a judge recuses himself of herself, for example because of illness or a conflict of interest. An interviewed judge observed that it would be extraordinary for the Court to deal with a case if less than eight judges can participate. Each judge is assisted by four law clerks, who conduct research and write memos and draft opinions.42

C. Caseload An important feature of the organisational set-up of the Anglo-Saxon highest courts is the system of case selection. This feature is typical of the common law highest courts, and allows these courts to concentrate on a small amount of cases only. (i) UK Supreme Court Concerning the UK Supreme Court, appeal is possible in cases where leave to appeal has been granted by the lower court—in most cases this is the Court of Appeal of England and Wales—or where a case has been admitted

37 R Bader Ginsburg, ‘Judicial Stimulation of Legislative Change: A View from the United States’ (Third Leslie Scarman Lecture, London, 11 February 2010), available at lawcommission. justice.gov.uk/docs/scarman_lecture_110210.pdf, 7. 38 Gibb, ‘Supreme Court opens’ (n 20). 39 See J Toobin, The Nine: Inside the Secret World of the Supreme Court (New York, Doubleday, 2007). 40 See Chapter 4, IIB. 41 Supreme Court Rules 2010 (US), r 4(2). 42 A Ward and DL Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York, New York University Press, 2006) 3–4.

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by the Supreme Court itself. The criterion for case selection is the ‘general public importance’ of arguable points of law.43 In 2009, the Appellate Committee of the House of Lords disposed of 104 applications for permission to appeal and had a caseload of 40 cases.44 Its successor the Supreme Court received 135 applications for permission to appeal between its start on 1 October 2009 and the end of the Court’s financial year on 31 March 2010.45 The Court heard 43 appeals and gave judgments in 42 cases. In 19 cases, the appeal was allowed.46 Between 1 April 2010 and 31 March 2011, 228 applications for permission to appeal were received by the Supreme Court, 76 appeals were heard and judgments were given in 56 cases. In 28 of the decided cases, the appeal was allowed.47 (ii) Supreme Court of Canada Cases can come to the Supreme Court of Canada if leave to appeal is granted by a panel of three judges on the Court. Leave to appeal is only given if a question of public importance is at stake or if an important legal issue is concerned which warrants the consideration of the Court.48 Beside the cases selected through the leave-to-appeal system, the Supreme Court also decides on ‘as of right’ appeals (including certain serious criminal cases, and appeals from provincial references), and on questions referred to it by the federal government.49 The following data give an impression of the functioning of the Supreme Court in practice. Between 2000 and 2010, the number of applications for leave to appeal which were granted fluctuated between 10 and 15 per cent of the applications submitted to the Court.50 In 2010, 512 new cases were filed. These concerned 488 applications for leave to appeal and 24 appeals as of right. In 2010, 465 applications were submitted to panels of the Court for decision. The Court heard 65 appeals over 51 hearing days, and handed down 69 judgments.51 The appeal was allowed in 29 cases and dismissed in 43

See www.supremecourt.gov.uk/about/role-of-the-supreme-court.html. Ministry of Justice (UK), Judicial and Court Statistics 2009, available at www.justice.gov. uk/downloads/statistics/mojstats/jcs-stats-2009-211010.pdf. 45 The financial year is defined by s 54(3) of the Constitutional Reform Act 2005. Section 54(1) of this Act provides that ‘[a]s soon as practicable after each financial year, the chief executive of the Supreme Court must prepare a report about the business of the Supreme Court during that year’. 46 UK Supreme Court, The Supreme Court Annual Report and Accounts 2009–2010, 22–23. 47 UK Supreme Court, The Supreme Court Annual Report and Accounts 2010–2011, 21–22, available at www.supremecourt.gov.uk/docs/ar_2010_11.pdf. 48 Supreme Court Act 1985 (Canada), ss 40(1) and 43(3). 49 Ibid ss 35.1–39 and 53; Supreme Court of Canada, Statistics 2000 to 2010, 1, available at www.scc-csc.gc.ca/stat/pdf/doc-eng.pdf. 50 Supreme Court of Canada, Statistics 2000 to 2010, 4. 51 Ibid 1. 44

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Introducing the Comparative and Empirical Analysis

40 cases.52 The judgment was unanimous in 52 cases, and split in 17 cases.53 The entire procedure, from the application for leave to appeal until the rendering of the Court’s judgment, on average took almost 19 months.54 Geographically, the applications for leave to appeal in 2010 corresponded with the size of the population of the provinces. The applications originated mostly from the provinces of Ontario (139), Québec (117), British Columbia (66) and Alberta (29), and from the Federal Court of Appeal (61). Of all these applications for leave, 27 per cent concerned criminal cases and 73 per cent concerned civil cases; 14 per cent of these applications concerned Charter cases. Of the appeals heard, the highest number of cases were cases referred from the Federal Court of Appeal (18), followed by cases from British Columbia (13), Ontario (10), Alberta (10) and Québec (9). Of these cases heard, 34 per cent were criminal cases and 66 per cent were civil cases.55 All decisions of the Supreme Court of Canada are published in English and in French in the Canada Supreme Court Reports. This publication encompasses the written and oral judgment of the Court as well as the reason for the judgment.56 (iii) US Supreme Court The US Supreme Court only reviews a small amount of cases, which are considered to have particular public importance. The majority of appeals from federal trial courts’ judgments are dealt with by the Circuit Courts of Appeal, established by the Judiciary Act 1925.57 Cases can be brought to the Supreme Court through the procedure in an original action, authorised appeals from US district court decisions, the procedure on a certified question, and the procedure on a petition for an extraordinary writ (such as a writ of prohibition, a writ of mandamus, or a writ of habeas corpus).58 Most cases reach the Court on the basis of its jurisdiction on writ of certiorari. In these cases, the Court has discretion to allow or dismiss appeals. The criterion for issuing a writ of certiorari is that compelling reasons exist for allowing the appeal. In principle, this will be considered to be the case if a ruling of the Supreme Court on the interpretation of the law is required, for example if a conflict has arisen between the case law of lower courts in the US judicial system.59 An interviewed judge indicated that policy implications 52 53 54 55 56 57 58 59

Ibid 8. Ibid 9. Ibid 2. Ibid 6. The judgments are also available at scc.lexum.org/en/index.html. Judiciary Act 1925 (43 Stat 936) (US). Supreme Court Rules 2010 (US), rr 17–20. Ibid r 10.

French Model

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might be a further factor taken into account by the judges when considering if a case should be admitted. On the basis of a list of selected cases made by the Chief Justice, with a possibility for Associate Justices to make additions, potential cases are discussed. A case is accepted if at least four judges agree to want to hear this case.60 The caseload of the Supreme Court has increased over the years. Hearings take place during terms which run from October to late June.61 Currently, more than 10,000 cases per year are on the docket, including carryover cases, of which about 100 are admitted for plenary review. After oral arguments in these selected cases, the Court issues written opinions in about 80 to 90 cases.62 During the Court’s 2009 Term, 8,159 cases were filed, 82 cases were argued and 77 were disposed of in 73 signed opinions. During the 2010 Term, 7,857 cases were filed, 86 cases were argued and 83 were disposed of in 75 signed opinions.63 Although cases concerning fundamental rights attract a lot of attention, many cases judged by the Supreme Court are about other issues, such as the structure of government, federalism and the separation of powers.64 This information about the caseload of the highest courts of the United Kingdom, Canada and the United States concludes our overview of the Anglo-Saxon organisation of final jurisdiction in the domestic judicial system. A different model can be identified in continental-European legal systems, of which France and the Netherlands will be addressed in this book.

II. FRENCH MODEL: MULTIPLE HIGHEST COURTS (FRANCE, THE NETHERLANDS)

The origins of the judicial system of France go back to the Revolution of 1789, and reflect the basic features of the Separation of Powers doctrine made famous by Montesquieu. Characteristic of the French model is the organisational division between judgment in civil and criminal cases and judgment in administrative cases, headed by separate highest courts. Napoleon transplanted this model to many countries in continental Europe,

60 L Denniston, ‘Is the “Rule of Four” Fully Intact?’ (Yale Law School panel discussion ‘Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process’, Washington, DC, 18 September 2009), available at www.law.yale.edu/documents/pdf/Clinics/ Lyle_Denniston.pdf. 61 28 USC s 2. 62 See www.supremecourt.gov/about/justicecaseload.aspx. 63 Chief Justice Roberts (US Supreme Court), 2011 Year-End Report on the Federal Judiciary, 13, available at www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf. 64 A statistical analysis of the cases dealt with by the Supreme Court during a term is published annually in Harvard Law Review. Concerning 2009 and 2010, see ‘The Supreme Court 2009 Term: The Statistics’ (2010) 124 Harvard Law Review 411; ‘The Supreme Court 2010 Term: The Statistics’ (2011) 125 Harvard Law Review 362.

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including the Netherlands, Belgium, Luxembourg, Italy and Greece.65 In the current research, the highest judicial and administrative courts of France and the Netherlands will be studied. Furthermore, the research includes the French Conseil Constitutionnel, which since its creation in 1946 has developed from a political institution of marginal importance into a full-fledged constitutional court. A similar institution is absent in the Dutch legal system, in which the judicial review of legislative acts in light of the Constitution is prohibited.66 As in the previous part of this chapter, the analysis will focus on the three key features of jurisdiction and court organisation: the competences of review, the composition of the courts and the courts’ caseload.

A. Competences of Review (i) Courts of Cassation The French and Dutch courts of cassation are amongst the oldest and most prestigious in their respective countries, and are located at historical venues. The Cour de cassation (Court of Cassation) is based at the Palais de Justice in Paris, and has its main entrance at Number 5 Quai de l’Horloge. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is based at the Lange Voorhout in The Hague, occupying the monumental Huis Huguetan at Numbers 34–36 and Huis Bentinck at Number 7. These courts of cassation are the supreme courts in civil and criminal cases. The Hoge Raad also has final jurisdiction in tax cases. Both courts’ jurisdiction is limited to the judgment of questions of law, and does not include the judgment on facts.67 The courts of cassation cannot review parliamentary acts in light of the Constitution. However, the courts are allowed to decide on the conformity of acts of the Parliament with provisions of international treaties binding the state.68 In France, this competence is referred to as the ‘contrôle de conventionnalité’ (review of conformity to international treaty law), as opposed to the competence of the Conseil constitutionnel to exercise a ‘contrôle de constitutionnalité’ (review of constitutionality) of legislative provisions.69

65 See L Prakke and C Kortmann (eds), Constitutional Law of 15 EU Member States (Deventer, Kluwer, 2004). 66 Constitution 1983 (Netherlands) (Grondwet van het Koninkrijk der Nederlanden), art 120. 67 Judiciary Organisation Act 1978 (France) (Code de l’organisation judiciaire), art L411-2; Judiciary Organisation Act 1827 (Netherlands) (Wet op de rechterlijke organisatie), s 79. 68 Constitution 1958 (France), art 55; Constitution 1983 (Netherlands), arts 93 and 94. 69 See below, IIAiii.

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Since 1991, the French Cour de cassation has the additional competence to issue an advice on ‘new’ legal questions referred by the lower courts in civil and criminal cases.70 The Court is further competent to judge public-office offences committed by judges.71 A special competence has been created for the possible impeachment of the President of the French Republic by the Parliament, which for this purpose can reunite as the Haute Cour (High Court).72 Criminal acts committed by members of the French Government can be brought before the Cour de justice de la République, which is composed of 12 members of Parliament and three judges of the Cour de cassation.73 The Hoge Raad, like its French counterpart, has a number of additional competences. These competences include the advice to the government concerning legislative bills or reform plans for the judiciary,74 the judgment of applications for cassation in the interests of the uniform application of the law (‘cassatie in het belang der wet’),75 the judgment of applications by the Procurator-General concerning the suspension or discharge of judges,76 and the judgment of public-office offences committed by members of the States General, ministers and state secretaries.77 On 1 July 2012, a law entered into force which allows the lower courts in the Netherlands to ask the Hoge Raad for a preliminary ruling on legal questions which have arisen in a large number of similar cases. This procedure is limited to civil cases.78 (ii) Supreme Administrative Courts The highest administrative courts in France and the Netherlands also have an important place in the judicial system of their countries. These courts are part of the historically developed institution of the ‘council of state’, which combines the tasks of legislative consultation and the judgment of administrative cases. The competence of the supreme administrative courts in France and the Netherlands mirrors that of the courts of cassation. However, the supreme administrative courts have the additional competence to judge some cases as first instance courts. Like the courts of cassation, the supreme administrative courts have the competence to review the

70 Loi no 91-492 du 15 mai 1991 modifiant le code de l’organisation judiciaire et instituant la saisine pour avis de la Cour de cassation. 71 Judiciary Organisation Act 1978 (France), s L411-4. 72 Constitution 1958 (France), arts 67 and 68. 73 Ibid 68-1, 68-2 and 68-3. 74 Judiciary Organisation Act 1827 (Netherlands), s 74. 75 Ibid s 78(1). 76 Ibid s 111. 77 Constitution 1983 (Netherlands), art 119. 78 Supreme Court Preliminary Questions Act 2012 (Wet prejudiciële vragen aan de Hoge Raad), Staatsblad 2012, 65.

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conformity of parliamentary acts in light of international treaty provisions but not in light of the Constitution.79 At the French Conseil d’Etat (Council of State), which is housed in the Palais-Royal in Paris, the final jurisdiction in administrative cases belongs to the Section du contentieux du Conseil d’Etat (Disputes Section of the Council of State).80 The Conseil d’Etat has competence to decide questions of law brought before it on the appeal of judgments from the administrative courts of appeal (Cours administratives d’appel), the specialised administrative tribunals and in some cases also the administrative courts of first instance (Tribunaux administratifs).81 Beside this competence, which represents 70 per cent of the judgments handed down by the Conseil d’Etat, the supreme administrative court also acts as a court of appeal for judgments given by the Tribunaux administratifs in municipal and cantonal election cases and for judgments of legality.82 Finally, the Conseil d’Etat is the judge of first and final instance for cases concerning lower legislative acts such as décrets (decrees) and actes réglementaires (regulatory acts) of ministers.83 Conflicts of competence between the administrative courts and the courts for civil and criminal cases are judged by the Tribunal des conflits (Court of Conflicts). This Court is presided over by the Minister of Justice, and is further composed of four members of the Conseil d’Etat and four members of the Cour de cassation.84 In the Netherlands, the highest administrative court with general jurisdiction is the Afdeling bestuursrechtspraak Raad van State (Administrative Jurisdiction Division of the Council of State),85 which is located in The Hague, near the Parliament and the Hoge Raad. In specific fields of administrative law, final jurisdiction in the Netherlands rests with two specialised tribunals. The Centrale Raad van Beroep (Central Appeals Tribunal), based in Utrecht, rules on appeals in social security and civil service cases. The College van Beroep voor het bedrijfsleven (Trade and Industry Appeals Tribunal), based in The Hague, decides cases in the field of social-economic law and is the court of appeal for cases arising under specific laws, including the Competition Act and the Telecommunications Act. These two tribunals occupy a relatively less prominent place in the Dutch judicial system, because of their small size. Moreover, no equivalent courts exist in the other

79

See above, IIAi. Hereafter, the term ‘Conseil d’Etat’ will be used to signify either the Council as a whole (including its advisory functions) or the Section du contentieux. 81 Administrative Justice Act 2000 (France) (Code de justice administrative), arts L111-1 and L331-1. 82 Ibid art L311-3. 83 Ibid art L311-4. 84 See www.tribunal-conflits.fr. 85 Hereafter, the term ‘Raad van State’ will be used to signify either the Council as a whole (including its Advisory Division) or the Administrative Jurisdiction Division. 80

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legal systems addressed in this book. Therefore, these two tribunals will be excluded from the comparative analysis presented in the next chapters.86 Criticism of the combination of political and judicial tasks in the Council of State has in recent years led to a reform of the internal organisation of the Raad van State in the Netherlands, in particular consisting of a stricter division of legislative and judicial functions.87 In France, too, close attention is paid to this discussion, which gained momentum after the judgment of the European Court of Human Rights (ECtHR) in the case of Procola v Luxembourg.88 In the Procola judgment, the ECtHR considered that the involvement of members of Luxembourg’s Conseil d’Etat in advisory and judicial tasks in the same case could generate doubts with regard to the Council’s structural impartiality. For this reason, the Strasbourg Court held that Article 6(1) ECHR had been violated. This consideration was reiterated in later judgments. An example is the judgment in Kleyn and others v The Netherlands, in which the ECtHR expressed some reservations concerning the Dutch Council of State’s internal organisation but dismissed the appeals of the applicants on the ground that these did not concern the ‘same case’ or ‘same decision’.89 Still, the expressed concerns formed an important reason for the further restructuring of the Council’s organisation, which remains a topic of debate in the Netherlands. (iii) Conseil Constitutionnel Housed in a wing of the Palais-Royal at the rue Montpensier in the centre of Paris, the Conseil constitutionnel (Constitutional Council) is situated close to the two other French highest courts. The Council can only be classified as a ‘true’ constitutional court since the constitutional revision of July 2008.90 This revision, which could be called revolutionary,91 introduced the procedure of the ‘question prioritaire de constitutionnalité’ (preliminary question of constitutionality, QPC). This procedure concerns the competence of a posteriori judicial review of legislative acts, a competence which

86 See below, IV. For more information about these specialised courts, see www.rechtspraak. nl/English/Judicial-System/Pages/default.aspx. 87 Council of State Restructuring Act 2010 (Wet herstructurering Raad van State), Staatsblad 2010, 175. 88 Procola v Luxembourg (1995) Series A no 326 (ECtHR, 28 September 1995). Concerning the discussion in France, see Décret no 2008-225 du 6 mars 2008 relatif à l’organisation et au fonctionnement du Conseil d’Etat. 89 Kleyn and others v The Netherlands [2003] VI ECHR (ECtHR, 6 May 2003) paras 190–202. 90 Loi constitutionnelle no 2008-724 du 23 juillet 2008 de modernisation des institutions de la Ve République. 91 Conseil constitutionnel et QPC: une révolution? (Paris, La Documentation française, 2011). See also M de S-O-l’E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009).

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has been granted exclusively to the Conseil constitutionnel.92 In this way, the Council was shaped after the Kelsenian model of concentrated judicial review,93 as opposed to the diffuse model of review by all national courts, existing for example in the United States. With the introduction of the QPC, the Council assumed the responsibility to ensure the constitutionality of the application of the law in individual cases. The Conseil constitutionnel came a long way to reach this state of judicial empowerment.94 The Council was established in 1946. However, its development towards a constitutional court occurred under the Constitution of 1958, which established the Fifth Republic. The Council’s initial task was to safeguard the constitutional distribution of powers between the President and Parliament. To this end, the Council was given competence to review the constitutionality of legislative Bills before their entry into force. Requests for review could be brought to the Council by a limited number of actors: the President of the Republic, the Prime Minister, the President of the Assemblée nationale and the President of the Sénat.95 Beside this competence of review of legislation, the Council was also given the competence to review electoral issues and referendums,96 and a consultative function with regard to the exercise by the President of the Republic of his competences under article 16 of the Constitution 1958.97 However, the Council became much more significant than many had foreseen at the time of its establishment. First, in a landmark decision of 1971 the Council claimed competence to review legislative Bills not only in light of the text of the Constitution itself, but also in light of the fundamental texts referred to in the Preamble to the Constitution.98 Thus, the way was paved for the a priori review of the conformity of legal provisions to the fundamental rights protected by the Déclaration des droits de l’homme et du citoyen of 1789, the social and economic rights protected by the Constitution of 1946 and the so-called ‘principes généraux reconnus par les lois de la République’ (general principles recognised by the laws of the Republic).99 The expansion of possibilities to bring cases before the

92

Constitution 1958 (France), art 61–1. H Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183. 94 See, eg H Roussillon and P Esplugas, Le Conseil constitutionnel, 7th edn (Paris, Dalloz, 2011). On ‘judicial empowerment’, see A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000); R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004). 95 Constitution 1958 (France), art 61. 96 Ibid arts 58–60. 97 Ibid art 16. 98 Liberté d’association CC 16 July 1971, Recueil 29. 99 T Koopmans, Courts and Political Institutions: A Comparative View (Cambridge, Cambridge University Press, 2003) 72–74. 93

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Conseil constitutionnel in 1974 led to an increase in the Council’s caseload and in this way contributed to its rise to power. In a published article, former member of the Council Noëlle Lenoir observed that, already before the introduction of the QPC in 2008, the Council constituted a necessary counterweight, which by its existence reined in the power of the state. In the centralised French political system, the Conseil constitutionnel contributes to the balance of powers and in this way to the self-limitation by the state of its powers.100 The reform of the Council into a ‘véritable cour de plein exercice’ (true full-review court) was considered by Lenoir to provide an excellent opportunity to make citizens more aware of their rights and duties, expressed in the values of the French Republic which underlie the Constitution.101 She emphasised that, after all, in liberal-democratic countries the citizen is the one who constitutional judges have in mind when they deliberate and decide the cases brought before them.102 In the process of constitutional reform which led to the introduction of judicial review in 2008, the Council’s former president Robert Badinter introduced an amendment in order to have the name of the Council changed into ‘Cour constitutionnelle’. However, this amendment eventually was not adopted by the French Parliament.103

B. Composition: Judges and Staff (i) Courts of Cassation The Dutch Hoge Raad at the time of the interviews consisted of the President, six Vice-Presidents, 31 Supreme Court judges and three extraordinary judges. The judges are distributed over three chambers: the Civil Law Chamber, the Criminal Law Chamber and the Tax Law Chamber. Cases are judged by a panel of three or five judges. There is a Procurator-General’s Office at the Hoge Raad, which consists of the Procurator-General, the Deputy Procurator-General and 21 Advocates-General. The ProcuratorGeneral’s Office provides a ‘conclusie’ (opinion) to the Court in most cases, rather like that of the Advocate-General before the Court of Justice of the European Union (CJEU), and thus acts as an advisor to the Court on how to decide the questions of law raised in the case at hand. The AdvocatesGeneral work in one of the three fields of competence of the Hoge Raad. The Court has a support staff, which is organised in the Court’s Research 100 N Lenoir, ‘1992–2001: Souvenirs d’une femme au Conseil constitutionnel’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 101 Ibid. 102 Ibid. 103 R Badinter, ‘Une longue marche “Du Conseil à la Cour constitutionnelle”’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr.

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Service (Wetenschappelijk Bureau). Judges in the Criminal and Tax Law Chambers have personal judicial assistants. In the Civil Law Chamber, two assistants are available for all judges together. The French Cour de cassation consists of six chambers: three general Civil Law Chambers, the Commercial Law Chamber, the Social Law Chamber and the Criminal Law Chamber.104 In total, over 200 judges work at the Court, including judges with a permanent position at the Court (‘conseillers’) and judges transferred for a fixed period of time from the lower courts (‘conseillers référendaires’). The chambers are further organised. The Criminal Chamber, for example, is composed of approximately 40 conseillers. These judges are distributed over four sections, which handle cases concerning specific areas of the criminal law. The judges of the Cour de cassation are assisted in their work by the Court’s Documentation Service (Service de documentation, des études et du rapport).105 (ii) Supreme Administrative Courts The Minister of Justice is the President of the French Conseil d’Etat. On a daily basis, however, the Conseil is headed by the Vice-President, currently Jean-Marc Sauvé. The Conseil further comprises around 300 members.106 These members are recruited amongst the graduates of the Ecole Nationale d’Administration (ENA). Also, external appointments occur, including the appointment of members of the administrative tribunals and courts of appeal. Members can combine their membership of the Conseil d’Etat with other functions, such as the position of judge in the CJEU or the ECtHR.107 The Section du contentieux comprises 10 judicial sub-divisions (‘soussections’). Each sub-division is headed by a President.108 The sub-divisions are specialised in different areas of administrative law. The judges of the Conseil d’Etat have access to judicial assistants, who are recruited amongst recent law graduates and can be called upon in the framework of both the Conseil’s consultative and judicial functions. These assistants are appointed for a maximum of three two-year periods, and provide assistance to the members of the Conseil regarding, inter alia, the drafting of memos and the conducting of research.109 Furthermore, the ‘commissaires du gouvernement’ (Government Commissioners) play a role comparable to that of the Advocates-General at the courts of cassation.110 104 105 106 107 108 109 110

See www.courdecassation.fr/institution_1. Ibid. See also Chapter 4, IIIA. See www.conseil-etat.fr/fr/organisation and www.conseil-etat.fr/fr/chiffres-cles. See www.conseil-etat.fr/en/the-members. See www.conseil-etat.fr/fr/organigramme-du-conseil-d-etat. See www.conseil-etat.fr/fr/les-assistants-de-justice-ce. See also Chapter 4, IIIA.

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The Raad van State is formally headed by the King of the Netherlands, who holds the position of President. In practice, the Council is headed by the Vice-President. This position is currently held by Piet-Hein Donner, who succeeded Herman Tjeenk Willink in February 2012.111 The Raad van State is further composed of a maximum of 10 members, approximately 40 State Councillors, and a small number of Extraordinary Councillors.112 Amongst the Extraordinary Councillors are one or two members of the Hoge Raad, whose role is to contribute to the consistency of the case law of the highest courts.113 Member of the Raad van State Pieter van Dijk and Councillor Ben Vermeulen, in November 2010, became deputy members of the Constitutional Court of Sint Maarten, one of the Dutch overseas territories.114 To guarantee the independence of the judicial decision-making, no more than 10 members and State Councillors may combine functions in the advisory and judicial divisions of the Raad van State.115 Members and State Councillors who take part in the judicial division are appointed for life by Royal Decree.116 The selection of candidates is made by the Raad van State itself, and candidates are considered on the basis of their expertise and experience in the fields of legislation, government or the judiciary. If a member or State Councillor is solely appointed to the judicial division, prior legal training is a requirement for appointment.117 The Administrative Jurisdiction Division of the Raad van State consists of three chambers, each dealing with cases concerning a specific field of administrative law. The Spatial Planning Chamber decides cases in first and final instance under specific legislative acts, including the Spatial Planning Act, the Nature Conservancy Act, and the Transport Infrastructure (Planning Procedures) Act. The Aliens Chamber judges appeals in the field of immigration and asylum law under the Aliens Act 2000. The General Chamber, finally, decides cases under a variety of legislative acts, including the Environmental Permitting (General Provisions) Act, the Government Information (Public Access) Act, as well as cases under general municipal byelaws and cases concerning planning permissions and the like.118 Until 1 June 2011, environment cases were dealt with by a separate chamber in the division. This chamber was integrated in the General Chamber on the 111 ‘Donner benoemd tot vicepresident Raad van State’ (The Hague, 16 December 2011), available at www.rijksoverheid.nl/nieuws/2011/12/16/donner-benoemd-tot-vicepresidentraad-van-state.html. 112 See www.raadvanstate.nl/the_council_of_state. 113 Concerning this practice, see S Kingma, ‘Raadsheer Snijders verbindingsofficier met de Raad van State’ (Cassatieblog, 15 November 2011), available at cassatieblog.nl/category/ hoge-raad-algemeen. 114 See also Chapter 4, IA. 115 Council of State Act 1962 (Netherlands) (Wet op de Raad van State), art 2(3). 116 Ibid arts 2(1) and 8(3). 117 Ibid art 2(4). 118 See www.raadvanstate.nl/the_council_of_state.

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occasion of the entry into force of the Environmental Permitting (General Provisions) Act.119 Each chamber of the judicial division is composed of a Chamber President, one or more Vice-Presidents and a number of members, which in 2010 ranged between 11 and 24.120 These members can be part of more than one chamber. The judicial division of the Raad van State is assisted by lawyers and support staff, who work in the Administrative Jurisdiction Department. The entire support staff of the Raad van State comprises around 600 persons, including 250 lawyers.121 (iii) Conseil Constitutionnel The Conseil constitutionnel is composed of nine members, who are appointed for a fixed period of nine years and cannot be reappointed.122 Every three years, three members retire and three new members are nominated by the President of the Republic, the President of the Assemblée nationale and the President of the Sénat. The President of the Republic also nominates the President of the Conseil constitutionnel. Beside the appointed members, the former presidents of the Republic are members by right. Specific regulations exist concerning the legal position of the members, including incompatibilities with political functions.123 Prior judicial training or experience is not a requirement for appointment to the Conseil constitutionnel. However, the appointment of persons not holding a law degree is an exception. Indeed, the particularity of a non-legal background emerges clearly from the description by sociologist Dominique Schnapper concerning her experience on the Council.124 Of the current members, all hold law degrees.125 The President of the Conseil constitutionnel generally is a political personality of ministerial rank, sharing the political colour of the authority which nominated him.126 The current President Jean-Louis Debré, for example, was Minister of Home Affairs (1995–1997) and President of the Assemblée nationale (2002–2007) before becoming President of the Conseil constitutionnel in 2007.127 However, in

119 Raad van State (Netherlands), Jaarverslag 2010, 207, available at www.raadvanstate. nl/publicaties/jaarverslagen. 120 Ibid 223–27. 121 See www.raadvanstate.nl/the_council_of_state. 122 Constitution 1958 (France), art 56. 123 Ibid art 57, Ordonnance no 58-1067 du 7 novembre 1958 portant loi organique relative au Conseil constitutionnel, and Décret no 59-1292 du 13 novembre 1959 sur les obligations des membres du Conseil constitutionnel. 124 D Schnapper, Une sociologue au Conseil constitutionnel (Paris, Gallimard, 2010). 125 See www.conseil-constitutionnel.fr. 126 A Lancelot, ‘Où il est question du bonheur au sommet de l’Etat’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 127 See www.conseil-constitutionnel.fr.

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the experience of members, political preferences have never played a role in the process of decision-making of the Conseil.128 The members of the Conseil constitutionnel are assisted by the SecretaryGeneral, nick-named the ‘maire du Palais’ (mayor of the Palace) because of his key role in the administration of the Council.129 Together with three judicial assistants, the Secretary-General conducts research and assists with the drafting of decisions. The judicial assistants are recruited from the judiciary, the administrative court system and the parliamentary service.130 They are selected on the basis of their knowledge of the law in combination with particular competences related to their prior professional background.131 An interviewed member of the Conseil constitutionnel observed that the judicial assistance is remarkably small in size when compared to the other French highest courts. Former Secretary-General Schoettl, by contrast, has emphasised the advantage of working with a small team, in particular as regards the possibility for collegial, fast and conclusive discussions.132 Beside these assistants, two or three librarians are employed by the Conseil constitutionnel to assist with documentary research.133

C. Caseload (i) Courts of Cassation The Dutch Hoge Raad during the research period did not have the possibility to select cases. In 2009, judgments were given in 527 cases by the Civil Law Chamber, in 3,464 cases by the Criminal Law Chamber, and in 999 cases by the Tax Law Chamber.134 An exception to the general rules of the Court concerned the possibility for the Advocates-General in tax cases (but not in criminal or civil cases) to select the cases for which they will write an opinion addressed to the court.135 Furthermore, the Court had the possibility to dismiss appeals with a shortened reasoning if it considered that there were no grounds for cassation and the case did not raise any legal questions which should be answered in the interest of legal uniformity or the development

128 Concerning the role of politics in judicial appointments, in particular in the United States, see further Chapter 4, IIB. 129 Lancelot, ‘Où il est question du bonheur’ (n 126). 130 Ibid. 131 JE Schoettl, ‘Ma cinquantaine rue de Montpensier’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 132 Ibid. 133 Lancelot ‘Où il est question du bonheur’ (n 126). 134 Hoge Raad (Netherlands), Verslag over 2009–2010, 53, 63 and 76, available at www. rechtspraak.nl. 135 One of the interviewed Advocates-General suggested that this exception relates to the absence of mandatory legal representation in tax cases.

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of the law.136 However, these cases would still have to go through the entire cassation trajectory, and in this way took up a considerable amount of time and resources. In order to improve the quality and efficiency of the cassation procedure in the Netherlands, a proposal for reform was prepared by a committee chaired by Supreme Court Justice Fred Hammerstein. This proposal, which was published in 2008, encompassed, inter alia, the introduction of a general mechanism of case selection.137 A Bill based on the recommendations of the Hammerstein Committee was submitted to the Dutch Parliament in 2010 and accepted by the Senate in March 2012.138 The new law entered into force on 1 July 2012, and the Hoge Raad anticipated to have adapted its working methods by then.139 The new article 80a of the Judiciary Organisation Act 1827 allows the Hoge Raad to dismiss an appeal directly at the beginning of the cassation procedure if this appeal apparently cannot lead to cassation or if the applicant apparently does not have a sufficient interest. In the French Cour de cassation, too, case selection was not possible during the time span covered by this research. No reform is envisaged in the near future. Therefore, the Court’s caseload will remain high. The Civil Law Chambers of the Cour de cassation hand down approximately 20,000 judgments per year.140 The Criminal Chamber decides around 8,000 cases every year.141 In 2010, the appeal was allowed in 23 per cent of the civil cases and in 7 per cent of the criminal cases judged.142 Still, not all cases are dealt with in the same way. Cases which are considered to be not serious or to be clear are decided by a panel of three judges. In the Criminal Chamber this is done in weekly meetings of the Chamber President with the senior judge and reporting judge (‘juge rapporteur’) of each section. The other cases are heard in the afternoon of the same day.143 Cases are judged by a panel consisting of a minimum of five judges. In some cases, for example when two sections diverge on the interpretation of the law, a mixed chamber can be established. An interviewed judge indicated that this

136

Judiciary Organisation Act 1827 (Netherlands), s 81. Hammerstein Committee, Improving Cassation Procedure (The Hague, February 2008), available at www.rechtspraak.nl/Organisatie/Hoge-Raad/OverDeHogeRaad/publicaties/Pages/ default.aspx. 138 Kamerstukken II 2010/2011, 32 576; Kamerstukken I 2011/2012, 32 576; Cassation Procedure Reinforcement Act 2012 (Wet Versterking cassatierechtspraak), Staatsblad 2012, 116. 139 ‘Meer aandacht Hoge Raad voor kerntaken’ (The Hague, 16 March 2012), available at www.rechtspraak.nl/Organisatie/Hoge-Raad/Nieuws/Pages/MeeraandachtHogeRaadvoor kerntaken.aspx. 140 See www.courdecassation.fr/institution_1/activite_cour_chiffres_58/statistiques_2010_ 21705.html. 141 Ibid. 142 Ibid. 143 Concerning the working methods of the courts, see further Chapter 4, III. 137

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mixed chamber will consist of a larger number of judges, possibly a total of 22.144 This judge further pointed out that the Chamber President already safeguards the coherency of the case law by attending all hearings of the sections. Furthermore, the Chamber President meets weekly with the senior judges (‘conseillers doyen’) of the sections to discuss the cases of each section and find out where differences of opinion might occur. Usually, seven or eight judges attend the oral hearings of cases. (ii) Supreme Administrative Courts The judicial division of the Dutch Raad van State cannot select its cases. On average, the judicial division decides approximately 13,000 cases per year, as well as around 1,050 applications for provisional relief (‘voorlopige voorziening’).145 In 2009, the Raad van State decided 1,951 cases in first and final instance and gave judgment on 690 applications for provisional relief. Also, judgments were handed down concerning 2,692 general appeals and 347 applications for provisional relief on appeal. As concerns the appeal in immigration and asylum cases, 4,432 cases were decided as well as 408 applications for provisional relief.146 In 2010, the Raad van State dealt with 2,132 cases in first and final instance, and decided on 810 applications for provisional relief. The general appeals decided reached the number of 2,396 and 310 decisions on applications for provisional relief. In immigration and asylum cases, finally, 6,077 judgments were handed down as well as 1,649 decisions on applications for provisional relief.147 The caseload per chamber of the judicial division was as follows in 2010: the Spatial Planning Chamber handed down 1,150 judgments, the Environment Chamber 982, the General Chamber 2,396, and the Aliens Chamber 6,077.148 At the Conseil d’Etat, too, a mechanism of case selection does not exist, and a large number of cases are judged each year. In 2009, the Conseil handed down decisions in 9,986 cases. The largest number of cases concerned the Conseil’s jurisdiction as a first instance court (34 per cent) or as the judge of appeals from decisions of the administrative courts of appeal (33 per cent).149 In 2010, 9,942 cases were judged by the supreme administrative court. Of the cases filed with the Conseil, 21.3 per cent concerned its jurisdiction in first instance, 36.3 per cent concerned appeals from judgments of the administrative courts of appeal, 24 per cent were appeals against judgments of the administrative tribunals, 11.2 per cent concerned 144

See also www.courdecassation.fr/institution_1. See www.raadvanstate.nl/the_council_of_state. 146 Raad van State, Jaarverslag 2010, 228–33. 147 Ibid. 148 Ibid 234. 149 Conseil d’Etat (France), Le Conseil d’Etat et la justice administrative en faits et chiffres 2009, 5, available at www.conseil-etat.fr/fr/le-conseil-d-etat-et-la-justice-administrative-en. 145

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appeals from judgments of specialised administrative courts, and 7.2 per cent were other cases.150 In the vast majority of cases (97 per cent in 2009, 96.5 per cent in 2010), the final decision of the case corresponds with the judgment of the first instance court.151 (iii) Conseil Constitutionnel The procedure for a priori review of the constitutionality of legal provisions can be initiated by a number of political actors only.152 Because of this limitation, the number of cases brought before the Council has always been small in comparison with the caseload of the other highest courts in France. In the first 50 years after the entry into force of the Constitution of 1958, the Council handed down 2,710 decisions in electoral cases and 791 decisions in cases of normative review, including 565 decisions concerning the a priori review of the constitutionality of legislative Bills.153 The overview of decisions on the Council’s website reveals that, in 2009, the Conseil constitutionnel handed down decisions concerning the constitutionality of legislative provisions in 26 cases of a priori review. Furthermore, the Conseil decided 22 cases in the framework of its other competences. In 2010, these numbers were 24 decisions on the constitutionality of legislative Bills, and 82 decisions in other types of cases.154 The rise of the Council’s caseload in 2010 in comparison with 2009 is related to the introduction of the procedure of the QPC, which was established in light of the constitutional reform adopted in July 2008.155 This procedure, concerning the alleged violation by a legislative provision of rights and liberties protected by the Constitution in individual cases, takes place through a double filtering. A question can be introduced during the court proceedings in individual cases in the civil and criminal courts or in the administrative courts, including the highest courts of the judicial and administrative court systems.156 The court will assess whether the contested legislative provision is indeed applicable to the case at hand, whether the Conseil constitutionnel has not yet judged this provision to be in conformity with the Constitution, and whether the question is not devoid of a serious nature.157 The question will then be assessed by the pertinent highest court: the

150 Conseil d’Etat (France), Le Conseil d’Etat et la justice administrative en 2010: faits et chiffres, 5, available at www.conseil-etat.fr/fr/le-conseil-d-etat-et-la-justice-administrative-en. 151 Annual Reports 2009 and 2010, cited in nn 149 and 150. 152 See above, IIA. 153 See www.conseil-constitutionnel.fr. 154 Ibid. 155 See above, IIA. 156 Ordonnance no 58-1067 du 7 novembre 1958 portant loi organique sur le Conseil constitutionnel, ss 23-1 and 23-5. 157 Ibid s 23-2.

Comparing the Courts

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Cour de cassation or the Conseil d’Etat. The highest court will refer a question to the Conseil constitutionnel if the aforementioned procedural conditions are fulfilled, and if the question is considered to be new or to be of a serious nature.158 The Conseil constitutionnel will decide within three months. During this procedure, the parties have the opportunity to present their observations in a public and adversarial procedure.159 After the decision of the Conseil constitutionnel is given, the original court proceedings will resume and the court will take a decision taking account of the judgment on the QPC.160 In 2010, the Conseil constitutionnel handed down 66 of these preliminary rulings. In 2011, the Council gave 111 preliminary rulings on a total of 145 decisions.161 It can be concluded, therefore, that the caseload of the Council has augmented considerably as a result of the QPC procedure.

III. COMPARING THE COURTS

On the basis of the particularities of their jurisdiction and organisation, some differences can be expected regarding the approaches to the use of foreign law in the examined highest courts. These differences relate mostly to the number of judges, the availability of judicial assistance, and the caseload that these courts have to deal with.

A. Competences of Review The selection of the highest courts for this comparative research was made on the basis of the shared functionality of these courts as the final interpreters of the law in their respective national legal systems. By choosing this focus, it is not meant to deny that a different comparison would have been possible as well. In particular, the French and Dutch final courts in civil and criminal cases very much resemble the Court of Appeal of England and Wales, concerning competences of review, composition and caseload. Moreover, as a result of the mechanism of leave to appeal, the Court of Appeal in fact is the final court in most civil and criminal cases arising in England and Wales. However, the use of foreign law, which is the focus of the current study, can be expected to occur most often in cases which require legal interpretation. Often, these cases include an international or European dimension

158 159 160 161

Ibid s 23–4. Ibid s 23–10. Ibid s 23–3. See www.conseil-constitutionnel.fr.

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or they concern a factual situation which has not occurred in the national legal system before, but which might have occurred elsewhere.162 These cases, which more often than not have public importance, will mostly make it to the final instance, even in the British system of case selection by the Supreme Court. For this reason, it was decided to focus on the highest national courts which formally have final jurisdiction concerning the judgment of questions of law. An assumption of the current research is that a difference in the treatment of foreign legal sources might exist between supreme courts and constitutional courts. All courts included in this research have the competence to give final judgments on the interpretation of the law in their national jurisdiction. Amongst the examined courts, only the Supreme Court of Canada, the US Supreme Court and the Conseil constitutionnel are constitutional courts, meaning that they have the competence to strike down legal provisions which are judged to be in violation with the national Constitution. This judicial review mostly concerns alleged violations of fundamental rights, an area which is considered to provide particularly good possibilities for comparative research because of the ‘universal’ nature of such rights. Moreover, constitutional courts possess political power, since they can annul legislative provisions. This could make them particularly able to introduce foreign legal ideas into national law. However, we should keep in mind that these characteristics of constitutional courts are no longer so exceptional. Indeed, the development of judicial review of legislative acts in light of international treaties has enabled supreme courts, such as the courts of cassation and the supreme administrative courts in France and the Netherlands, to take a position similar to constitutional courts in relation to the legislator. In the United Kingdom, the Supreme Court has obtained a similar position vis-à-vis the national government through the competence to declare Acts of Parliament to be incompatible with the HRA 1998.163 In this light, the court which stands out most amongst the ones selected for this research is the Conseil constitutionnel, which is a ‘pure’ constitutional court and does not have the competence to engage in other types of judicial decision-making. All the other analysed courts do have the competence to judge cases concerning the interpretation of statutes, either in the field of private or criminal law or in the field of administrative law. With this overview in mind, we will reconsider the importance of the distinction between supreme courts and constitutional courts in Chapter 6 on the basis of the empirical analysis of the development of judicial practices in the globalised world.

162

See further Chapter 5, IIIA. However, the status of the HRA 1998 in the British legal system is still a question of debate, also amongst the judges of the Supreme Court. See Chapter 5, IA. 163

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B. Composition The judges in the Anglo-Saxon highest courts are formally not specialised and will regularly sit on cases with each of their colleagues. The same is true for the members of the French Conseil constitutionnel. Therefore, ideas about the use of foreign laws can be discussed by all judges together. The judges in the French and Dutch courts of cassation and supreme administrative courts, by contrast, act within the context of a specific chamber. Their exchange of ideas will thus be restricted to a specific field of law and a less varied group of colleagues. Because of this internal specialisation, discussions about the use of foreign law might focus on different aspects between the specific chambers. For example, discussions in the Tax Law Chamber of the Hoge Raad are likely to concern to a large extent the application of EU law, since this is a legal source applicable in many VAT cases.164 In private law cases, criminal cases or administrative law cases, different types of foreign law can be discussed and the frequency of such discussions can vary depending on the specific area of the law. In particular, the occurrence of international law aspects or human rights aspects is likely to stimulate the judicial debate about foreign legal sources. However, we will also consider whether the use of foreign law has developed in cases concerning the interpretation of purely national law.165 In any case, the organisational surroundings of individual judges, concerning both the types of cases in which they are involved and the possibilities for exchange with their colleagues, can be thought to have an influence on these judges’ familiarity with and personal approach to the use of foreign law.

C. Caseload As concerns caseload, in contrast to the Anglo-Saxon highest courts, the French and Dutch highest courts currently have no formal possibility of case selection. The only exceptions concern the preliminary ruling procedure before the Conseil constitutionnel in France, and the AdvocateGeneral’s opinions in tax cases in the Netherlands. Furthermore, a mechanism of case selection in civil cases was introduced for the Hoge Raad in July 2012. Generally, an observation concerning these courts must be that the judges are able to spend limited time on individual cases, and on the insights which foreign law might offer in these cases. This is different for the Anglo-Saxon courts, which decide only a small number of cases each year and can devote more time to the study of relevant legal sources

164 165

See Chapter 5, IIA. See Chapter 5, II.

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in these cases. Moreover, in the Anglo-Saxon legal systems, the counsel for the parties is supposed to put forward all arguments and relevant materials, while the judges in the French and Dutch courts conduct research into relevant materials themselves.166 Yet, the French and Dutch courts seem to benefit from a larger research staff and the input of internal advisors, such as Advocates-General and commissaires du gouvernement. We will examine in the next chapter how these organisational differences concerning caseload and research tasks and facilities play out in the context of the use of foreign legal sources.

IV. AN EMPIRICAL ANALYSIS

This book uses a qualitative research method for the analysis of the practices of the highest courts in the globalised legal context. In the next paragraphs, this research method will be outlined in more detail.

A. Interviewed Judges The research included 33 judges, who were interviewed between September 2009 and May 2011. In the United Kingdom, interviews were held with seven Supreme Court judges and one recently retired Law Lord. The interviews took place in November 2009.167 In the Netherlands, interviews were held with 13 judges of the Hoge Raad, as well as with five AdvocatesGeneral. These interviews took place in September and October 2009. Both in the United Kingdom and in the Netherlands, additional information was obtained through meetings with judicial assistants at the courts. Interviews with two members of the Afdeling bestuursrechtspraak Raad van State and with a liaison officer took place in March 2011. In Canada, two former and two current judges of the Supreme Court were interviewed in April 2010. One of these interviews was conducted by telephone after the research visit to Canada, because time did not allow including a meeting in this research visit. In France, four judges with experience in each of the three highest national courts—the Cour de cassation, the Conseil d’Etat and the Conseil constitutionnel—and two legal assistants at the Conseil d’Etat were interviewed in September 2010. In the United States, interviews with two judges 166

See Chapter IV, III. In May 2009, three exploratory interviews were held with judges of the Court of Appeal of England and Wales. The information obtained through these interviews was used for the set-up of the interviews at the British and Dutch Supreme Courts. Although the results are not included in this book, it should be noted that the experiences of the interviewed Court of Appeal judges correspond in many respects with those of the judges of the UK Supreme Court. 167

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of the Supreme Court took place in April and May 2011. Information was also obtained from a judicial assistant working for one of the interviewed US judges. In all courts, the secretaries of the judges were very helpful in organising the meetings and in handling further correspondence about the research.168 Other empirical research concerning judges has revealed how difficult it is to obtain a sufficiently large and sufficiently representative number of participants for the research.169 This research, too, has been dependent on the willingness of judges to participate. In the United Kingdom, Canada and the United States, all sitting judges of the Supreme Courts in the aforementioned time periods were sent a letter containing information about the research and a request for an interview. In the Netherlands and in France, the large number of judges on the highest national courts required that a selection was made beforehand. For the Dutch Hoge Raad, a selection of judges and Advocates-General was made, including persons from all three Chambers of the Court. The interview requests were sent to the President of the Supreme Court and to the Procurator-General, who forwarded this request to the selected judges and Advocates-General. With the exception of one Advocate-General, who could not participate because of time constraints, all of the contacted judges and Advocates-General agreed to take part in the research. One former Canadian judge and three of the French judges were approached with the assistance of the Hague Institute for the Internationalisation of Law (HiiL). The contact with the fourth French judge was established at a conference. The meetings with judicial assistants and liaison officers occurred mostly on an ad hoc basis during visits at the highest courts for the conducting of the interviews. In a few cases, interviews with assistants were scheduled in advance with the help of a judge. Concerning the representative character of the collected information, it is fair to assume that judges who take a favourable position towards the use of foreign law have been more willing to participate in the research than judges who oppose this practice or contest its usefulness. Indeed, one of the approached judges (who declined the invitation to participate in the research) replied to the interview request by referring to the public statements which this judge had made against the use of foreign law in judicial decision-making. Furthermore, many of the participating judges were the same judges who publish and speak about the possibilities of the use of foreign law in the judgment of cases. Therefore, the results of the research

168

See below, IVB. Concerning highest court judges, see B Flanagan and S Ahern, ‘Judicial DecisionMaking and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 International and Comparative Law Quarterly 1. See also P Darbyshire, Sitting in Judgment: The Working Lives of Judges (Oxford, Hart Publishing, 2011); U Jaremba, National Judges as EU Law Judges: The Polish Civil Law System (Leiden, Brill, forthcoming). 169

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should be considered with this observation in mind. Still, the large number of judges who participated in some of the courts, in particular in the United Kingdom and the Netherlands, give reason to believe that also judges who are not sympathetic to the use of foreign law have been included in the research in a sufficient manner. The information collected through the interviews confirms that judges with favourable as well as judges with resistant views towards judicial internationalisation were represented. Since the aim of the research is not to point out quantitative occurrences of the use of foreign law but to describe and analyse the different aspects of the development of the practices of the highest courts, the possible overrepresentation of one ‘type’ of judges should not pose a problem.

B. The Interviews In order to obtain as much useful information as possible, while at the same time allowing the comparison of results, a semi-structured interview technique was chosen.170 A list of themes was formulated in advance.171 Questions based on these themes were brought up during the interviews, while flexibility in the formulation and the sequence of these questions was allowed. A central concern in the interview design was to create an atmosphere in which the judges would feel free to express their personal views. For this reason, the judges were informed that any information used in publications would be non-attributed. Furthermore, no interviews were tape-recorded. Most interviews lasted between 45 minutes and one hour. A few interviews were shorter, but none were shorter than half an hour. All meetings took place in the offices of the judges or, in the case of the retired judges, at their office in the Houses of Parliament, in the case of the retired Law Lord, or in their current workplace, in the case of one of the former judges of the Supreme Court of Canada and a former judge of the French Cour de cassation. A few judges provided copies of publications or judgments which they considered relevant for the research. The questions which were discussed with the judges focused on several main lines of inquiry. These concerned, first of all, the personal experiences of the judges with international and foreign elements in their decisionmaking. Secondly, questions were asked concerning the judges’ participation in the international relations of their court, for example, through judicial networks and exchanges between courts. Further questions concerned the 170 Concerning this research methodology, see JA Maxwell, Qualitative Research Design: An Interactive Approach, 3rd edn (Thousand Oaks, CA, Sage, 2012). See also I Seidman, Interviewing as Qualitative Research: A Guide for Researchers in Education and the Social Sciences, 3rd edn (New York, Teachers’ College Press, 2006); JW Creswell, Qualitative Inquiry and Research Design: Choosing among Five Approaches, 3rd edn (Thousand Oaks, CA, Sage, 2012). 171 See Annex.

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types of foreign legal materials used in the judges’ decision-making, and the practical aspects of the search for and the use of these materials in judicial deliberations and reasoning. The aim of this line of inquiry was, inter alia, to find out to what extent judicial assistants, litigants and legal counsel and academics have an influence on the judges’ use of foreign legal materials. To get a better idea of the influence of the judges’ personalities on their decision-making, some questions were asked concerning the judges’ personal background. These questions concerned the judges’ legal training and their professional experiences before being appointed on the highest court. Finally, questions were put to the judges regarding the perception of their role in the balance of powers at the national level and in the global legal context. Notes made during the interviews were typed out as soon as possible after the interview. Mostly, this was done on the same day or on the day after an interview had taken place. The notes of each interview were organised by connecting them with the selected themes of the research. These notes were then compiled in a country report for each of the examined jurisdictions. In the country reports, preliminary observations concerning the practices of the highest court or courts were made. These observations included an indication of whether an expressed view was shared by several judges or seemed to be exceptional in the studied court. Furthermore, retrieved public information about the examined highest court or courts in a legal system was connected with the interview results. The country reports formed the basis for the description and comparative analysis of the practices of the highest courts in several academic articles and finally in this book. Draft versions of these articles and of the book were sent to the interviewed judges and Advocates-General for approval and comments.172 Eleven judges replied, and some of them pointed out minor inaccuracies in the description of their views or made suggestions for the improvement of the comparative and theoretical analysis. In order to ensure the accuracy of the book’s depiction of the courts and legal systems, further feedback was asked of academic scholars from each of the examined jurisdictions. Part of the book’s conclusions corroborate the results of empirical research carried out by Brian Flanagan and Sinéad Ahern, who conducted a survey 172 Results of the interviews, in particular concerning the UK Supreme Court and the Dutch Hoge Raad, were used in the following publications: E Mak, ‘Why Do Dutch and UK Judges Cite Foreign Law?’ (2011) 70 Cambridge Law Journal 420; M Adams and E Mak, ‘Buitenlands recht in nationale rechtspleging: onder welke voorwaarden is dat feitelijk nuttig en mogelijk?’ (2011) 86 Nederlands Juristenblad 2912; E Mak, ‘De Grondwet en de globalisering van de rechtspraak’ in A Kristic, A Meuwese and G van der Schyff (eds), Functie en betekenis van de Grondwet: Een dialogisch perspectief (Nijmegen, Wolf Legal Publishers, 2011); E Mak, ‘Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices’ (2012) 8 Utrecht Law Review 20; E Mak, ‘Rechterlijke rechtsvergelijking: over het gebruik van rechtsvergelijkende argumenten in de beslissingen van hoogste rechters’ in ET Feteris et al (eds), Gewogen oordelen: Essays over argumentatie en recht (The Hague, Boom Juridische uitgevers, 2012).

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among 43 common law supreme court judges concerning the use of foreign law in deciding constitutional rights cases.173 However, the research presented in the book also gives rise to different observations, notably through its contestation of the conclusion of Flanagan and Ahern that judges are predominantly opportunistic when referring to foreign law.174 In a general manner, the qualitative interview methodology used for the research had the advantage that it enabled participants to express themselves with more nuance than would have been possible in a quantitative anonymous questionnaire approach such as used by Flanagan and Ahern. Also, the use of interviews as a research method made it possible to ask additional questions, which helped to better interpret the obtained answers.

C. Other Sources: Case Law, Speeches and Articles The analysis of case law, academic publications of judges and public speeches held by judges was used to validate and complement the results of the interviews. This analysis started out from judgments and publications mentioned during the interviews. An additional analysis of case law was made through the search for citations of foreign law in the published judgments of the highest courts. The purpose of this analysis was not to establish the frequency of references to foreign law, but to confirm the judges’ account of the different ways in which foreign law is used in judicial decision-making and of the foreign jurisdictions which are consulted. The aim of the analysis of public speeches and academic publications of judges was to find out whether the views expressed by individual judges in the interviews corresponded with public statements made regarding the discussed topics. Moreover, this part of the research made it possible to assess the views of judges who did not participate in the interviews. The databases and case reports which were used for this research were: BAILII175 for the United Kingdom; the Lexum collection176 for Canada; the online database of Cornell University’s Legal Information Institute (LII)177 for the United States; the case reports in Nederlandse Jurisprudentie and the published judgments on the websites of the Dutch judiciary178 and the Raad van State179 in the Netherlands; and the published judgments on the websites of the highest courts in France.180 The results of this analysis were checked in light of the available quantitative research by other academic 173 174 175 176 177 178 179 180

Flanagan and Ahern, ‘Judicial Decision-Making and Transnational Law’ (n 169). See Chapter 5, IIIA. See www.bailii.org. See scc.lexum.org. See www.law.cornell.edu/supct. See www.rechtspraak.nl. See www.raadvanstate.nl. See www.courdecassation.fr, www.conseil-etat.fr and www.conseil-constitutionnel.fr.

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researchers.181 Public speeches of judges were retrieved through a search of the official websites of the highest courts, national governments, judicial networks, universities and other institutions and a general search on the Internet. Finally, academic publications of judges were collected using the standard methods of literature research in legal scholarship. The study of these additional sources has proved to be very valuable for the completion of the picture which was established on the basis of the interviews. Points of view and examples mentioned by the judges in the interviews could be placed in context by the study of their public statements and the analysis of relevant judgments of the highest courts. The published judgments of the courts, in turn, can be understood better through the explanation offered by judges concerning the use of foreign law. The observations made by the judges and the information from the analysed public sources together clarify the development of judicial internationalisation in the highest courts and its implications for judicial decision-making at this level.

V. CONCLUSION

The highest national courts in the United Kingdom, Canada, the United States, France and the Netherlands have their own characteristics, but display many similarities as well. The analysis in this chapter provides an overview of the most striking similarities and differences concerning the jurisdiction, composition and caseload of the courts in the Anglo-Saxon and French models. This overview will serve as a point of reference for the understanding of the developments in each of the studied highest courts, and for the comparative analysis of these developments. In the globalised legal context, the role of the examined highest courts has become a question of public debate. In the European jurisdictions, this debate has focused on the position of the highest national courts in relation to the European courts in Luxembourg and Strasbourg. Also, the visibility of the highest national courts in the society, and the relationship between the courts and the other branches of government, have become matters of debate. At the other side of the Atlantic, debates about the Supreme Court of Canada and the US Supreme Court concern the role of international law and consensus and the role of comparative law in judicial decision-making. In all of the examined jurisdictions, debates have arisen concerning the increased significance of human rights and the judicial protection of these rights in a multi-level legal context. In the next chapters, we will analyse how the roles, relations and working methods of the highest national courts, and the use of foreign law in judicial decision-making, have developed in this internationalised legal context.

181

See Chapter 1, IV.

4 Incorporating the Transnational: Judicial Roles, Relations and Working Methods in a Globalised World

T

HIS CHAPTER FOCUSES on the development of the roles, relations and working methods of the highest national courts in the United Kingdom, Canada, the United States, France and the Netherlands under the effects of globalisation. How have the increased role of nondomestic legal sources and the increased possibilities for exchange between judges in different jurisdictions affected the role and functioning of the highest national courts? How are these global influences assessed by judges and incorporated in their approaches to judicial decision-making? The perception of the interviewed judges concerning the development of their court’s role and functioning will be the point of departure for the analysis in this chapter. This way, an insider’s perspective can be given concerning the effect of constitutional, institutional and organisational changes on the functioning of the highest national courts in today’s globalised legal context. The interview results, combined with available public information, reveal how the highest courts in the five examined legal systems have incorporated transnational influences with regard to: (1) the role of their court; (2) their relations with other courts and judges; and (3) the process of decision-making in their court. As part of this analysis, the interest of individual judges to engage with the transnational legal context was investigated. The description of judicial practices and views clarifies which lessons judges in the different jurisdictions have learnt from each other. This information enables us to assess the influence of individual approaches of judges on the development of the practices of their court. Furthermore, this information makes it possible to clarify to what extent a convergence of judicial practices between highest courts has taken place under the effects of globalisation, or to what extent it is likely that a convergence of this kind will develop in the future. This chapter is organised as follows. First, the judicial roles of the highest national courts in the globalised legal context will be outlined. Secondly, we will consider how the international relations of the highest courts have

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developed in this context of globalisation. Finally, the development of the working methods of the courts will be analysed, in particular concerning the treatment of foreign legal sources in the process of discovery and in the justification of the decisions in domestic cases.

I. JUDICIAL ROLES IN A GLOBALISED WORLD

Several systemic changes have influenced the role of the highest national courts in Western legal systems in the globalised legal context. These changes can be identified, first, at the level of the role of these courts as the guardians of the law in national legal systems. This role encompasses the role of the courts to ensure the uniform application of the law at the national level and their role to protect the fundamental rights of individuals in the final instance. The interviews clarify that the practices of the highest courts to fulfil their tasks in this regard have developed under the effects of the Europeanisation and internationalisation of national legal systems. Secondly, the highest courts have a role in the development of the law. In light of this role, they are participants in a process of interaction with courts and other legal actors at the national level. We will see that, under the effects of globalisation, the highest courts increasingly also take part in a transnational ‘judicial dialogue’ with courts in other jurisdictions. The development of these two roles of the highest national courts will be analysed and discussed hereunder.

A. Guardian of the Law The highest national courts in liberal democracies are the guardians of the law, guaranteeing the independent and impartial administration of justice in the national legal order. This role consists of two tasks: the guarantee of the uniform application of the law and the protection of the fundamental rights of individuals. Several developments of these tasks have occurred under the influence of globalisation. (i) Ensuring the Uniform Application of the Law The highest national courts have the task to guarantee the uniform application of the law by all judges in the national legal system.1 To this end, as we saw in Chapter 3, the highest courts have the authority to determine the meaning of the national law in the final instance. In the interviews, the

1

See, eg a contrario Judiciary Organisation Act 1827 (Netherlands), s 81.

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judges expressed their views concerning the fulfilment of this task by their courts in the globalised legal context. Examples were mentioned of situations in which legal rules and case law originating outside of a domestic legal context might need to be taken into account by the national courts. The interviewed judges identified two significant situations: the situation in which legal rules and judgments have binding force across national borders, and the situation in which legal rules and judgments have binding force within a federation or a similar structure for the organisation of government. In this respect, the task of the highest national courts to guarantee the uniform application of the law encompasses two transnational aspects. First, the guarantee of the uniform application of the law depends on other actors besides the highest national courts. Secondly, the task of the highest national courts is related to a specific territorial scope. We will now consider how these aspects influence the role of the highest national courts. Furthermore, we will see how these aspects of transnational judicial interaction correspond with mechanisms of judicial coordination in national legal systems with multiple highest courts, such as France and the Netherlands. (a) Highest National Courts and International and Supranational Courts In the globalised legal context, the task to guarantee the uniform application of the law to an increasing extent concerns the application of rules developed outside of the national legal system, such as international treaty provisions and the law of the European Union. Concerning the application of some of these rules, the guarantee of the uniform application of the law has shifted, in full or in part, to the international or supranational level. This is the case, for example, with regard to the European Convention on Human Rights (ECHR) and the law of the European Union, which are binding legal sources for the examined highest courts in the United Kingdom, France and the Netherlands. The interpretation and application of the ECHR in the final instance is the competence of the European Court of Human Rights (ECtHR), which decides on individual appeals. The highest national courts sometimes add further refinement to the ECtHR’s case law when applying the Strasbourg Court’s judgments in the national context.2 The Court of Justice of the European Union (CJEU) is competent concerning the final interpretation of EU law, on the basis of requests by national courts for a preliminary ruling.3 The application of the interpreted rule of EU law remains the competence of the national court. In Canada and the United States, no similar general influence of international or 2

Ibid. Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/164, art 267. 3

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supranational courts exists. However, a question about the binding nature of a judgment of an international court can arise occasionally. An example occurred in the Medellin judgment of the US Supreme Court, in which the domestic legal effect of a judgment of the International Court of Justice (ICJ) was considered.4 The guarantee of the uniform application of the law in the interaction with international and supranational courts is not always an easy task. Concerning the content of the CJEU’s case law, several judges of the Dutch Hoge Raad remarked that the European Court’s case law is inconsistent, which makes it a puzzle for the national judges to solve. Furthermore, the judges felt that the Luxembourg Court’s CILFIT criteria for ‘acte clair’5 do not prevent different approaches of national judges regarding the submission of cases for preliminary rulings, and thus undermine the uniform interpretation of EU law. An example concerned the legal definition of peepshows as theatre or cinema for tax purposes. This question had arisen both in the Netherlands and in Belgium, and in the Dutch case was solved by the Hoge Raad itself,6 while in the Belgian case a preliminary ruling was asked of the CJEU.7 In both decisions, the private or collective nature of the services was pointed out as the determining factor for answering the legal question. Concerning international legal rules which do not fall under the jurisdiction of an international or supranational court, the guarantee of uniform application is a task of the national courts when they are called upon to apply these rules in concrete cases. This can occur, for example, in the field of transnational uniform commercial law. In this context, national courts have turned to each other for guidance. For example, some of the examined highest national courts have cited the case law of foreign courts when interpreting the Convention on the Contract for the International Carriage of Goods by Road (CMR).8 Finally, smaller regional courts can also play a role concerning the guarantee of the uniform application of the law across national borders. Several judges of the Dutch Hoge Raad mentioned their participation in the decision-making of the Benelux Court of Justice, which was established in the framework of judicial cooperation between the Netherlands, Belgium and Luxembourg.9 This Court, which is composed of judges from the three participating states, is particularly active in the field of intellectual property law. One of its tasks is to settle preliminary questions sent by the Dutch, Belgian and Luxembourg courts concerning the uniform interpretation of 4

See Chapter 5, IIA. Case 283-81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 03415. 6 HR 5 December 2008, LJN BB0678. 7 Case C-3/09 Erotic Center BVBA v Belgium [2010] ECR I-02361. 8 See Chapter 5, IIB. 9 See www.courbeneluxhof.be/fr/index.asp. 5

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identified common legal rules.10 The Court’s interpretation is binding on the national courts, which have to take this interpretation into account when deciding the domestic case in which the referred question had arisen.11 (b) Highest National Courts and Internal Jurisdictions The task of the highest national courts to ensure the uniform application of the national law may be limited, by law or in fact, to only part of the national territory or it may be subject to specific conditions. Indeed, some of the examined highest courts have to deal with cases coming from different internal jurisdictions, for example in the context of a federal system or in the context of overseas territories with a particular status. In this context, too, the highest courts look across national borders for guidance on how to organise judicial decision-making and on how to decide cases. Concerning the scope of a highest court’s jurisdiction within a national legal system, some observations can be made. The United Kingdom is made up of three separate legal systems: England and Wales, Scotland and Northern Ireland. The Supreme Court for the United Kingdom is the final court for most cases coming from these jurisdictions, but in principle it does not have competence to review judgments of the Scottish High Court of Justiciary in criminal cases. The sole exception concerns criminal cases in which a ‘devolution issue’ has arisen under the Scotland Act 1998.12 Regarding Canada, an interviewed judge indicated that the Supreme Court of Canada mostly leaves civil cases to the Court of Appeal of Québec, even though the Supreme Court has competence to decide on appeals from these cases. This observation is corroborated by the court statistics, which show that a relatively lower number of applications for leave to appeal are accepted from Québec than from some of the other provinces.13 The reason for this, according to the interviewed judge, is related to the Canadian cultural context, and the respect which the Supreme Court wants to show with regard to judgments by the Québec courts. In the United States, thirdly, limitations of the Supreme Court’s jurisdiction are related to the distribution of judicial competences between the federal level and the level of the states.14 In the European countries, furthermore, former colonial relations have led to the creation of complex systems of territorial jurisdiction. The Judicial Committee of the Privy Council in the United Kingdom, the French 10

Traité du 31 mars 1965, art 6, available at www.courbeneluxhof.be/pdf/traite_fr.pdf. Ibid art 7(2). 12 Criminal Procedure Scotland Act 1995, s 124(2); Scotland Act 1998, sch 6(1); UK Supreme Court, ‘Scottish Criminal Cases and the UK Supreme Court’, available at www. supremecourt.gov.uk/docs/scottish_criminal_cases.pdf. 13 See Chapter 3, IC. 14 See www.uscourts.gov/educational-resources/get-informed/federal-court-basics/ comparing-state-federal-courts.aspx/. 11

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Cour de cassation, and the Dutch Hoge Raad have competence to judge cases coming from legal entities with a specific regime, under conditions related to the constitutional status of these entities. The jurisdiction of the Privy Council includes the decision of appeals from the British Crown dependencies—Jersey, Guernsey and the Isle of Man—as well as current and former Commonwealth countries, overseas territories and sovereign bases, and a small number of ancient and ecclesiastical courts.15 The French Cour de cassation has competence to judge cases coming from the overseas territories.16 These territories are regulated by French law and additional rules related to their constitutional position.17 In the Netherlands, the Hoge Raad—as the final court judging legal questions in civil and criminal cases—also deals with cases coming from the overseas parts of the Kingdom, which comprise six islands in the Caribbean.18 Since the constitutional reforms which took effect on 10 October 2010, the islands of Curaçao and Sint Maarten have obtained a separate status as countries within the Kingdom of the Netherlands, a status which the island of Aruba already had. The islands of Bonaire, Saba and Sint Eustatius have become municipalities of the Netherlands.19 Interestingly, the three overseas countries introduced a mechanism of constitutional review in 2010, in the form of a Constitutional Court for Sint Maarten and a procedure for review with the Gemeenschappelijk Hof van Justitie (Joint Court of Justice) for Aruba and Curaçao.20 The Constitutional Court’s President Jacob Wit has observed that this mechanism fits well into the existing practices in Sint Maarten’s neighbouring countries in the Caribbean.21 An interviewed judge of the Raad van State (Administrative Jurisdiction Division of the Council of State) considered that the case law of the Constitutional Court of Sint Maarten in the future might have an influence in the debate concerning the introduction of constitutional review of legislation in the Netherlands. (c) Internal Coordination between Highest Courts Coordination between highest courts is also required at the national level if more than one court with final jurisdiction exists. This is the case in the Netherlands and France. This need for coordination, which was extended 15

See www.jcpc.gov.uk/about/role-of-the-jcpc.html. Judiciary Organisation Act 1978 (France), art L411-1. 17 Constitution 1958 (France), arts 72-3, 72-4, 73, 74 and 74-1. 18 Rijkswet van 20 juli 1961 houdende de Cassatieregeling Aruba, Curaçao, Sint Maarten en Bonaire, Saba en Sint Eustatius, Staatsblad 1961, 212. See also www.rechtspraak.nl/ Organisatie/Hoge-Raad/OverDeHogeRaad/Pages/ArubaCura%C3%A7aoSintMaartenenBon aireSabaenSintEustatius.aspx. 19 See www.rijksoverheid.nl/onderwerpen/caribische-deel-van-het-koninkrijk. 20 See www.gemhofvanjustitie.org/?lang=en. 21 S Monart, ‘Sint Maarten baanbrekend met Constitutioneel Hof’ (Aworaki, 17 November 2010), see www.rnw.nl/caribiana/article/sint-maarten-baanbrekend-met-constitutioneel-hof. 16

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with the establishment of the European Union and its Court of Justice, triggered the development of connections between highest courts. The information obtained through the interviews suggests that the exchange between courts in this context has created awareness amongst judges about the working methods and approaches of their colleagues in other courts. In the Netherlands, the Hoge Raad and the Raad van State have established formal and informal mechanisms of cooperation. Since the 1970s, the tradition has developed that one or two judges of the Hoge Raad are appointed in the Raad van State to act as ‘liaison officers’.22 Informally, judges of the two highest courts exchange views about cases which touch upon the areas of competence of both of them. In this way, the uniformity of the law can be ensured. An example mentioned by an interviewed judge at the Raad van State concerned the ‘betting cases’, in which the compatibility of Dutch gambling rules with EU law was addressed. Both the Raad van State and the Hoge Raad asked the CJEU for a preliminary ruling on this matter.23 The two Dutch courts then decided the respective cases at the national level, taking into account the point of view of the other highest court.24 In France, the Cour de cassation, the Conseil d’Etat and the Conseil constitutionnel take account of each other’s case law. The late Bruno Genevois, who was a member of the Conseil d’Etat and later the Secretary-General of the Conseil constitutionnel, introduced the term ‘dialogue des juges’ to describe the interaction between the French highest courts and their interaction with the CJEU and ECtHR.25 He used this term in his conclusions as commissaire du gouvernement in the Cohn-Bendit case concerning the direct effect of Directives of the European Community (EC), decided by the Conseil d’Etat on 22 December 1978. Genevois considered that in the context of the European Community (now the European Union) judges should not govern nor should they be in conflict with each other. Instead, there should be room for a dialogue between judges.26 In the liber amicorum 22

See Chapter 3, IIB. Case C-203/08 Betfair v Minister of Justice [2010] ECR I-04695 (on a reference for a preliminary ruling by the Raad van State) and Case C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator [2010] ECR I-04757 (on a reference for a preliminary ruling by the Hoge Raad). 24 ABRvS 23 March 2011, LJN BP8768; HR 24 February 2012, LJN BT6689, conclusion Advocate-General Keus, para 4.25 (mentioning the CJEU’s judgment in Betfair). See also ABRvS 14 May 2008, LJN BD1483 (containing the Raad van State’s questions to the CJEU) and HR 13 June 2008, LJN BC8970, para 3.6.6 (indicating that one question to the CJEU was similar to a question referred by the Raad van State). 25 D Schnapper, Une sociologue au Conseil constitutionnel (Paris, Gallimard, 2010) 330. See also the title of the liber amicorum presented to Genevois: R Badinter et al, Le dialogue des juges: Mélanges à l’honneur du président Bruno Genevois (Paris, Dalloz, 2009). 26 CE Ass 22 December 1978, D 1979, 155, concl Genevois: ‘À l’échelon de la Communauté européenne, il ne doit y avoir ni gouvernement des juges, ni guerre des juges. Il doit y avoir place pour le dialogue des juges.’ 23

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published in honour of Genevois in 2009, the Vice-President of the Conseil d’Etat, Jean-Marc Sauvé, considered that the aspiration voiced by Genevois has found a reply in the development of the case law of the French highest courts and in the case law of the CJEU. Sauvé observed that this dialogue requires continued imagination and tenacity of the courts, avoiding either capitulation or rebellion.27 Interestingly, the former member of the Conseil constitutionnel Dominique Schnapper has remarked that to a social scientist (which she is) the relations between the French highest courts might be defined more easily in terms of rivalry or competition than in terms of dialogue. She feels that the harmony established between the case law of the three highest courts can be attributed, to a significant extent, to the modesty of the Conseil constitutionnel.28 A specific issue which has arisen between the Conseil constitutionnel and the Conseil d’Etat, for example, concerned a conflict of jurisdiction in electoral cases, in which the constitutional council showed deference to the supreme administrative court.29 Schnapper relates this deference to the composition of the Conseil constitutionnel. Many members feel an affinity with the other highest courts, because they have previous experience as judges in the judicial or administrative courts, or as academics have developed specialised knowledge of these courts’ case law. Moreover, Schnapper thinks that it was felt by the members of the Conseil constitutionnel that the Council’s case law would be more influential in the other highest courts if deference was shown to the decisions of these courts.30 Eventually, and for the first time in 1985, the Conseil d’Etat started to explicitly express its respect for the decisions of the Conseil constitutionnel by including references to the constitutional council’s case law in administrative law judgments.31 Notwithstanding the apparent competition between the French highest courts, Schnapper argues that ‘dialogue’ as a legal ideal can be a point of reference and a regulatory principle for the judges, and in this way can influence the practices of the highest courts.32 In sum, the analysis of the three aspects of the uniform application of the law in the globalised legal context clarifies that judges of the highest courts increasingly are aware of, and communicate with, judges in highest courts elsewhere. This development could facilitate convergence between

27

JM Sauvé, ‘Préface’ in Badinter et al, Le dialogue des juges (2009) XLII. See also below, IB. Schnapper, Une sociologue (n 25) 331, citing B Genevois, ‘L’influence du Conseil constitutionnel’ (1989) no 49 Pouvoirs 47, 53. 29 Schnapper, Une sociologue (n 25) 332–34. 30 Ibid 331. A more critical analysis of the Conseil constitutionnel’s posture of reverence to the Conseil d’Etat has been published by former member of the Conseil constitutionnel Monique Pelletier, ‘Quatre années trop courtes’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 31 Schnapper, Une sociologue (n 25) 334–35. 32 Ibid 330. 28

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the working methods and approaches to judicial decision-making in the courts which are connected in this way. (ii) Ensuring the Protection of Fundamental Rights The second important task of highest national courts is to safeguard the fundamental rights of individuals in the last instance. The development of the practices of the highest courts in the framework of this task will be discussed in more detail in Chapter 4. Some general observations, based on the views expressed by the interviewed judges, can be made already here. First of all, national Constitutions have increasingly incorporated fundamental rights provisions. Fundamental rights are protected by the codified Constitutions of the Netherlands and France, the Canadian Charter of Fundamental Rights and Freedoms and the Amendments to the United States Constitution.33 In the United Kingdom, civil rights and liberties have been protected through statutes since the Magna Carta of 1215.34 Secondly, the proliferation of human rights treaties, such as numerous UN Conventions and regional human rights regimes,35 has had as a consequence that national judges increasingly are called upon to apply international law in the deciding of national cases. Indeed, the protection of the fundamental rights of individuals requires that binding treaty provisions concerning these rights are taken into account in the decision-making of the highest national courts. In this respect, the ECHR has become a powerful instrument of human rights protection in Europe. The special status which this Convention has acquired through the Human Rights Act (HRA) 1998 in the United Kingdom illustrates the significance of this development. This Act, which empowered British judges to review Acts of Parliament in light of the ECHR, has induced a change in the judicial and political attitudes regarding the protection of fundamental rights and the balance of powers in the British legal system.36 In particular, the visibility and political role of the UK Supreme Court have increased because of government reactions to judgments handed down in light of the HRA 1998 and because of criticism of the HRA 1998 in general.37 In the Netherlands, and to a lesser extent

33

See further Chapter 5, I. T Bingham, The Rule of Law (London, Allen Lane, 2010) 10 ff. 35 Concerning this development, see A Iriye, P Goedde and WI Hitchcock (eds), The Human Rights Revolution: An International History (New York, Oxford University Press, 2012). 36 Much has been written about this reform and its impact on the UK legal system. See, eg A Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009); T Hickman, Public Law after the Human Rights Act (Oxford, Hart Publishing, 2010). 37 J Dyson, ‘What is Wrong with Human Rights?’ (Hertfordshire University, 3 November 2011), available at www.supremecourt.gov.uk/docs/speech_111103.pdf. 34

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also in France, the influence of treaty law in the field of fundamental rights protection was intensified by the prohibition for judges to review national legislative provisions in light of the Constitution. Because of this limitation, judges in these two legal systems have turned to international treaties, in particular the ECHR, in order to guarantee the compliance of parliamentary acts with human rights.38 On the other side of the Atlantic, international treaty provisions concerning the protection of fundamental rights have an influence too. However, in Canada and the United States, this influence is less significant when compared to the role of national constitutional provisions.39 The role of international and European fundamental rights within national legal systems has given rise to judicial, political and academic debates. In particular, the level of protection of rights by international mechanisms has been put into question on a number of occasions. In the framework of the European Union, the famous Solange judgments of the German Bundesverfassungsgericht (Federal Constitutional Court) come to mind, which concerned the hierarchy between EU law and German constitutional law regarding fundamental rights protection.40 More recently, the judgments of the Court of First Instance and the CJEU in the Kadi case have led to discussion concerning the protection which should be given to the fundamental constitutional values of the EU legal order vis-à-vis commitments made in the international legal order.41 In the slipstream of this discussion, in the Netherlands the question has been raised to what extent the national Constitution should offer protection to the fundamental constitutional values of the national legal order.42 Current debates, inter alia, in the United Kingdom and the Netherlands, focus on the legitimacy of

38 Concerning the Netherlands, see E Mak, ‘Report on the Netherlands and Luxembourg’ in 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). See further Chapter 5, IA. 39 See Chapter 5, I. 40 BVerfG 29 May 1974, Solange I [1974] 2 CMLR 540, 37 BVerfGE 271; BVerfG 22 October 1986, Solange II [1987] 3 CMLR 225, [1986] 73 BVerfGE 339. On the communication between the Bundesverfassungsgericht and the CJEU in these cases, see M de S-O-l’E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009). 41 Case T-315/01 Kadi v Council and Commission [2005] ECR II-03649; Case C-402/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351. See also C Eckes, ‘The Case of Counter-Terrorist Sanctions’ in KE Jørgensen and KV Laatikainen (eds), Routledge Handbook on the European Union and International Institutions (Abingdon, Routledge, 2013); and G Balducci, ‘The EU’s Promotion of Human Rights’ in the same volume. 42 LFM Besselink and RA Wessel, Ontwikkelingen in de internationale rechtsorde en Nederlands constitutioneel recht: een ‘neo-monistische’ benadering (Deventer, Kluwer, 2009); Staatscommissie Grondwet, Rapport Staatscommissie Grondwet (The Hague, 11 November 2010), available at www.rijksoverheid.nl/documenten-en-publicaties/rapporten/2010/11/11/ rapport-staatscommissie-grondwet.html.

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the ECtHR as a transnational court with competence to decide originally domestic cases.43 This attention reveals that further reflection is desired concerning the organisation of human rights protection in the globalised legal context. In particular, the relations between actors with public power in different legal orders need to be clarified further. This is also a matter of concern with regard to another task of the highest national courts, namely, the development of the law.

B. A Developer of the Law Highest national courts have a task concerning the development of the law. This task is apparent in the criteria for case selection of the Anglo-Saxon highest courts, which include the need for clarity on the interpretation of the law. This task can also be identified in the jurisdiction of the highest courts in the examined civil law systems. Indeed, the courts of cassation cannot decide questions concerning the facts of cases, but have solely been entrusted the deciding of legal questions.44 In the globalised legal context, this task of developing the law has gained new momentum through the development of legal exchange between the highest national courts and courts in other jurisdictions. From the interviews with judges, a picture emerged of shifting patterns of authority and autonomy, which materialise in horizontal and vertical communication45 between courts. (i) Judicial Authority and Autonomy in a Globalised World It appears that, in the globalised legal context, the status of highest national courts as final interpreters of the law is no longer sufficient to confirm their authority as leaders with regard to the tasks assigned to them. In the context of international law and EU law, other courts have entered the scene as legal interpreters with final authority concerning a specific set of rules. The highest national courts have to apply legal rules developed outside of their national jurisdiction, and they have to take account of the interpretation of these rules by international or supranational courts, such as the ECtHR and CJEU. Moreover, the highest courts in different national jurisdictions

43 See, eg B Çah, A Koch and N Bruch, The Legitimacy of the European Court of Human Rights: The View from the Ground (Strasbourg, 2 May 2011), available at ecthrproject. files.wordpress.com/2011/04/ecthrlegitimacyreport.pdf. See also several contributions in N Huls, M Adams and J Bomhoff (eds), The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (The Hague, TMC Asser Press, 2009). 44 See Chapter 3, IIA. 45 AM Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99.

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increasingly interact with each other in informal settings.46 This development has caused a shift in the position of authority and autonomy of the highest national courts. Under the effects of globalisation, the authority of highest courts concerns not only their formal legal status as the final interpreter of a specific set of legal rules, but also the prestige accorded to these courts by other courts and by society at large. The autonomy of highest courts concerns the formal discretion granted to them regarding the choice of legal sources for judicial decision-making, and the contextual possibilities and constraints (inter alia, of a political, economic or cultural nature) which exist in this respect. Some authors have gone as far as to argue that judicial internationalisation has reinforced the position of national courts vis-à-vis their national governments. These authors consider that the support found in the case law of foreign and international courts concerning specific interpretations of the law can constitute a powerful tool for the national courts to oblige the domestic political branches to account for their actions and policy choices.47 Authority and autonomy represent two sides of the same coin, in the sense that the authority, or lack thereof, of one actor can constrain or enable the autonomy of another actor. The current interaction between highest courts in Western legal systems gives rise to the question where ‘leadership’ in judging is located in this transnational context, and which factors determine the approaches of specific courts and of the judges in these courts. This ‘judicial leadership’ concerns the choices made by courts with the aim of influencing the interpretation, application and development of the law within a specific legal context. A connection exists with the notion of ‘leadership’ as developed in the fields of political science and management studies concerning the functioning of institutions and organisations. The concept of ‘leadership’ has been applied in an exploratory way to the functioning of judiciaries, and has yielded insights into choices made with regard to court organisation and the institutional positioning of courts vis-à-vis other actors with public power.48 In the analysis of highest national courts, a distinction can be made between the quest for judicial leadership amongst peers (horizontal dialogue), and the quest for judicial

46

See below, II. E Benvenisti and GW Downs, ‘Going Global to Preserve Domestic Accountability: The New Role of National Courts’ in S Muller and S Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010). See also R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004). 48 See, eg NJH Huls, ‘Rechterlijk leiderschap, ontwikkelingen sinds 1988’ in NJH Huls (ed), Versterking van de cassatierechtspraak door de Hoge Raad (The Hague, Boom Juridische uitgevers, 2009). 47

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leadership vis-à-vis courts at the international and supranational level (vertical dialogue).49 (ii) Horizontal Dialogue: Leadership Amongst One’s Peers The communication between highest national courts does not solely concern questions of substantive law. Exchanges between courts and judges also take place in order to learn about views and experiences concerning procedural and organisational issues.50 The leadership of highest courts amongst their peers in this regard can be analysed on the basis of three factors. Concerning the uniform application of the law, first, it can be assessed how influential a specific court is with regard to the interpretation of international and supranational legal rules. An indicator in this respect is the extent to which courts in other jurisdictions strive to interpret these rules in conformity with the case law of the examined court. Leadership in this sense can also be assessed in the field of human rights protection, the second task of highest courts. However, relations of authority and autonomy concerning human rights protection in general concern the vertical interaction between highest national courts and international or supranational courts rather than the horizontal interaction between the highest courts in different national legal systems. Thirdly, the leadership of highest national courts in horizontal relations concerns the development of the law in areas which are not governed by shared international legal rules. Leadership is expressed, in this context, when the answer to a legal question by a highest national court is used as a source of inspiration for the decision-making of another court on a similar question. The analysis in Chapter 5 will clarify how the highest national courts have developed their role with regard to these three aspects of transnational communication between highest national courts. (iii) Vertical Dialogue: Leadership vis-à-vis the European Courts The interaction between highest national courts and international or supranational courts generally is governed by formal relations of authority. An exception concerns the Supreme Court of Canada, which regularly pays attention to the case law of the ECtHR without being bound to do so. For the Canadian Court, the ECtHR’s case law is a possible source of inspiration for its own decision-making,51 and in this sense the study of the ECtHR’s case law fits the search for leadership amongst peers with regard 49 50 51

Slaughter, ‘A Typology of Transjudicial Communication’ (n 45). See below, IIA. See Chapter 5, IIA.

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to the development of the law. This is different, however, for the highest national courts in Europe. The highest courts of the United Kingdom, France and the Netherlands are bound by the judgments of the ECtHR and CJEU. Therefore, the search of these national courts for leadership in the fields of law governed by the ECHR and EU law is constrained by the formal requirement to respect the judgments of the European courts. Within this limited scope of formal relations, it could be argued that highest national courts are able to claim leadership in two ways. First, the highest courts can act by demarcating the boundaries between the national and the transnational legal orders. The aforementioned Solange judgments of the German Bundesverfassungsgericht52 are an example of this type of display of leadership. Leadership in a weaker sense can be claimed through the initiating of a ‘dialogue’ with an international or supranational court concerning the interpretation or application of specific legal rules. This kind of exchange is regularly visible in the interaction between the British Supreme Court, formerly the House of Lords, with the ECtHR.53 The communication through judgments, as clarified by these examples, puts emphasis not so much on the hierarchical aspect of the supremacy of specific norms or courts. Instead, the exchange of views initiated by the highest national courts focuses on the idea of safeguarding a core of fundamental principles protected by the national Constitution. One could also say about this interaction between legal orders at different levels that ‘it is based on a sort of reciprocal hierarchical link, which is better characterised by saying that it harbours a sort of mechanism of facing mirrors’.54 The views of the interviewed judges concerning this vertical communication suggest that the authority and autonomy of the highest national courts and of the European courts remain an issue of debate.55 An interviewed British judge felt that the UK Supreme Court has an influence on the decision-making of the ECtHR. This judge observed that in the interaction

52

See above, IA. See Chapter 5, IIA. 54 JB Auby, La globalisation, le droit et l’Etat (Paris, LGDJ, 2010) 111: ‘Il suffit ici de mentionner l’étagement bien complexe que constituent le droit des Nations unies, le droit de la Convention européenne, le droit de l’Union européenne, et les droits nationaux, tel que nous le révèlent les jurisprudences européennes et nationales. L’arrêt Kadi, d’une part, les jurisprudences nationales de type Solange, d’autre part, nous révèlent que cet étagement n’est pas hiérarchique en vérité, ou si l’on veut qu’il repose sur une sorte de lien hiérarchique réciproque, qu’on caractérise mieux en disant qu’il recèle une sorte de mécanisme de miroirs affrontés.’ [It is sufficient to mention here the very complex staging constituted by the law of the United Nations, the law of the European Convention [on Human Rights], the law of the European Union and national laws, as it is revealed to us by the European and national case laws. The Kadi judgment, on the one hand, the national case laws of the Solange type, on the other hand, reveal to us that this staging in truth is not hierarchical, or even that it is based on a sort of reciprocal hierarchical link, which is better characterised by saying that it harbours a sort of mechanism of facing mirrors.] 55 See further Chapter 5, I and II. 53

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with this court there is more scope for influence than in the context of the European Union. According to the judge, the Luxembourg Court is more political, and searching for a common denominator. This is not always satisfactory. Another judge of the UK Supreme Court thought that the British court had an influence both on the CJEU and on the ECtHR, and mentioned the doctrine of mutual trust in commercial litigation as an example of this influence. A third British judge mentioned having been en visite at the European courts, but warned against believing in a ‘great European enterprise’ or ‘dialogue’. This judge observed that the British judges try to write in a way which is attractive to the ECtHR, which helped, for example, to alert the ECtHR about the misunderstanding of the British court-martial procedure in the Morris case.56 Nonetheless, this judge admitted that the last word in these cases belonged to the ECtHR. The judge seemed to regret this, and referred to a lecture given by Judge Patrick Elias of the Court of Appeal for England and Wales on the rise of ‘Strasbourgeoisie’.57 An interviewed judge of the Dutch Hoge Raad observed that this court should engage more in this kind of dialogue with the European Courts. Another judge pointed out that the interaction between the Hoge Raad and a supranational court like the CJEU is dependent on the development of the case law and in this respect encompasses an element of contingency. Nonetheless, this judge considered that the Hoge Raad could strive for more visibility with an eye to the acceptance of its decisions by the society as well as its authority. This judge nuanced the importance of visibility somewhat by pointing out that judgments of the Hoge Raad generally do not engender many negative reactions. Finally, a judge of the Hoge Raad felt that currently all highest courts in Europe create their own ongoing ‘story’. This judge considered that, in the context of the European Union, a true convergence of case law might develop if a European Civil Code were adopted.58

C. Conclusion The trend of globalisation, in the legal sphere, has led to a reshaping of the role of highest national courts in light of the expanding set of legal sources which are available for judicial decision-making, and the increased interconnections with courts in other jurisdictions. These changes have created new commitments for the highest national courts concerning the

56

See Chapter 5, IIA. P Elias, ‘The Rise of the Strasbourgeoisie: Judicial Activism and the ECHR’ (Annual Lord Renton Lecture, Institute for Advanced Legal Studies, London, 24 November 2009), available at www.statutelawsociety.org/papers. 58 See Chapter 5, IIB. 57

International Relations of the Highest Courts 83 application of legal norms with different origins. Also, different forms of communication with other courts have emerged in a setting in which clear hierarchical lines do not exist. The majority of the judges who were interviewed for this book feel that they have been challenged by these changes to develop new strategies concerning the search for and weighing of arguments in their decision-making, and to develop judicial leadership through their engagement as ‘partners in a common judicial enterprise’.59 The traditional paradigms of the state and the hierarchy of norms are not able to properly regulate this changed role of the courts. Therefore, this book will explore how this new role of the highest national courts can be incorporated in the constitutional framework for the functioning of these courts. To this end, the judicial experiences with the use of foreign legal sources will be analysed in Chapter 5. In the remainder of the current chapter, we will first see how judges feel that the changed role of highest national courts has affected the activities engaged in by their own court. It will become clear that the increase of international relations of the courts can be explained in light of the pursuit of the abovementioned judicial leadership. Furthermore, the analysis will demonstrate that a process of institutionalisation is taking place in the highest courts concerning the study of international and comparative law. Based on the interviews, it will be argued that this institutionalisation is connected with the judicial wish to increase the quality of judgments, and to provide a sound and efficient mechanism for the weighing of arguments from different sources.

II. INTERNATIONAL RELATIONS OF THE HIGHEST COURTS

In reply to the question about their personal experiences with judging in the globalised world, the interviewed judges outlined the activities of their court in the framework of judicial networks or bilateral exchanges. Many judges also specified individual experiences they had by participating in transnational exchanges with courts and academics, and reflected on the influence of a judge’s personal mind-set as related to the openness to foreign sources.

A. Judicial Networks and Exchanges The judges gave examples of judicial networks in which their courts or they themselves have participated, and mentioned other forms of exchange with judges in foreign jurisdictions. They clarified which kind of issues are

59

AM Slaughter, A New World Order (Princeton, NJ, Princeton University Press, 2004) 68.

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discussed in the framework of such exchanges, and expressed their personal views on the usefulness of these exchanges for the judicial reflection on issues of court organisation and court procedures, as well as for judicial decision-making in individual cases. The observations of the judges provide insight into the thoughts and motivations of individual members of the highest national courts, and in this way provide a valuable complement to the existing scholarship concerning judicial networks.60 (i) UK Supreme Court The judges of the UK Supreme Court, first of all, are active in different judicial networks and regularly participate in exchanges with foreign courts. The British judges receive foreign delegations and visit foreign courts. Examples mentioned included the Association of Judges, Franco-British meetings, and exchanges with judges from India, the United States, Italy, Germany, Spain and Sweden. Further examples included the participation of the UK Supreme Court in the World Conference on Constitutional Justice in South Africa in 2009, and the Court’s membership of the Venice Commission. The interviewed judges considered that contacts take place most frequently with the US Supreme Court and courts in Commonwealth jurisdictions, as these courts have to deal with similar problems as the UK Supreme Court. Exchanges mostly concern the discussion of procedural issues. However, substantive matters are discussed as well. A judge mentioned the interest of British judges in the way in which their Canadian counterparts were dealing with the balancing of anti-terrorism measures and the protection of human rights. Another judge expressed an interest in experiences of foreign colleagues with human rights instruments. An example in this respect concerned the Charter of Rights and Freedoms in Canada. This judge further remembered that a discussion in the framework of the Venice Commission had concerned the question of ‘international constitutional norms’, for example with regard to the relationship between national courts and the executive power. Another judge remembered discussions about unjust enrichment, judicial independence and human rights. This judge felt that these exchanges can be quite boring, because the differences between the substantive laws in different countries generally are too big for a fruitful exchange of legal ideas to take place. However, this judge valued discussions about procedural and organisational matters, such as dealing with the media. 60 See especially Slaughter, A New World Order (n 59); J Meierhenrich, ‘Judicial Networks’ in AJ Langlois and KE Soltan (eds), Global Democracy and its Difficulties (London, Routledge, 2009); M Claes and M de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’ (2012) 8(2) Utrecht Law Review 100.

International Relations of the Highest Courts 85 Concerning the usefulness of exchanges, an interviewed judge considered that these exchanges open one’s view. The judge considered this healthy, as legal systems show a parallel political movement to closer union. Another judge observed that foreign exchanges make one realise that judges in other jurisdictions are sometimes facing the same problems. This judge pointed out that amongst his colleagues some are ‘extreme networkers’. The judge mentioned Lord Mance, who has many contacts in Germany and France, was president of the Consultative Council of European Judges (CCJE) operating under the auspices of the Council of Europe,61 and was a Trustee of the Europäische Rechtsakademie (Academy of European Law) in Trier.62 The interviewed judge himself had started participating in foreign exchanges some years earlier through a colleague, and in particular had participated in exchanges with Canada, Australia and New Zealand. Another judge considered that Lord Bingham and Lord Goff were the most outward-looking judges amongst the former Law Lords. This judge thought of himself as the ‘insular one’ on the UK Supreme Court. The judge did not value gatherings of judges, but considered that conferences could be useful if they help to deepen one’s own thinking. Yet another judge, who had been involved in visits to the United States and South Africa, remarked that some academic conferences had been thought-provoking. In particular, this judge remembered conferences at the Federal Court of Boston and at Harvard Law School. Based on this information, it appears that the British judges are quite active in transnational exchanges, although the personal involvement of judges varies considerably. Exchanges with courts which share the common law tradition are considered most useful. However, judges of the UK Supreme Court also engage in exchanges with courts in continentalEuropean legal systems, in particular the courts in the larger countries. The motivation of the judges to invest in these transnational relations seems to be connected to specific interests, in particular concerning their role in the development of the common law and concerning the application and development of EU law and the ECHR. Language is a constraining factor for the exchanges. (ii) Supreme Court of Canada The Supreme Court of Canada, secondly, is actively involved in international exchanges with judges from other countries.63 The Court receives about 25 delegations of foreign judges every year. Furthermore, five continued 61

See www.coe.int/t/DGHL/cooperation/ccje/default_en.asp. See www.era.int. 63 See also M Bastarache, ‘The Globalisation of the Law and the Work of the Supreme Court of Canada’ in Muller and Richards, Highest Courts (n 47) 52–54. 62

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sessions are organised with the highest courts of India, the United Kingdom, the United States and France and with the ECtHR. For example, in the exchange with India a delegation of five judges visits every four years in Canada or in India. Bilateral exchanges with other highest courts also take place ad hoc. For example, in the autumn of 2010, judges from the Supreme Court of Canada visited the ECtHR in Strasbourg and the German Bundesverfassungsgericht in Karlsruhe. The Supreme Court of Canada also takes part in the Pacific conference, which reunites judges from Australia, New Zealand and Hong Kong. Furthermore, the Supreme Court of Canada is a member of associations of French-speaking courts. In June 2010, a conference reuniting judges of 40 courts took place in Ottawa in the framework of the Association des Hautes juridictions de cassation des pays ayant en partage l’usage du français (AHJUCAF). The theme of this conference concerned the internationalisation of law and justice.64 As concerns the development of these contacts, a judge remarked that these are already quite intense, and cannot expand indefinitely. In particular, the small size of the Supreme Court of Canada and the Court’s workload are constraining factors in this respect. Topics discussed during judicial exchanges concern substantive law as well as procedural law matters. During a visit in the framework of the continued sessions, three to five themes of common interest are discussed. The participating judges are asked to prepare a paper on a specific theme for the benefit of this discussion. An interviewed judge mentioned as examples of discussed substantive law matters: the exchange with US Supreme Court Justices on aboriginal law; with the ECtHR on freedom of religion, freedom of opinion and broad human rights questions; and with UK judges on tort and defamation law. Regarding procedural law, examples given concern the exchange with US judges on the topics of leave to appeal and dealing with the media. In bilateral exchanges with judges from other Western liberal democracies, such as the United Kingdom or the United States, a theme is chosen and decisions of both Canada and the other court are compared. Questions asked are why specific decisions were taken, and which criteria were used. Most judges consider these exchanges as just yielding information. A judge added that the helpfulness of these exchanges depends on the level of engagement and the time that judges can invest in these contacts. This judge considered it helpful to discover that one is facing similar problems as the highest court in another country. For example, the ECtHR’s use of the ‘margin of appreciation’ doctrine inspired the Supreme Court of Canada regarding the interpretation of the ‘justified limitations’ mentioned in section 1 of the Charter.65

64 65

See www.ahjucaf.org/Les-congres.html. See Chapter 5, IIIA.

International Relations of the Highest Courts 87 One interviewed judge held a different viewpoint concerning the usefulness of international exchanges. Concerning the ECtHR, this judge considered the exchange could yield more than just information. This judge mentioned finding the Strasbourg case law inspiring, for example, concerning the way in which it dealt with the question of the adoption of children by homosexuals. In Canada, 80 per cent of the population was against allowing this. The judge liked the approach of the ECtHR to this question, which focused on the interests of the child. However, the provincial courts in Canada framed the constitutional question to concern the right of adults to adopt, in this way missing out on the possibility to learn from the ECtHR’s case law. The Supreme Court of Canada further receives a large number of visitors from developing countries. Examples are Russia and Ukraine. Judges from these countries are interested in the methodology of judicial decisionmaking, for example, concerning the reasoning of decisions. The Court has also received visitors from the Philippines and Ghana. These relations have started developing after the National Judicial Institute66 launched the theme ‘good governance’. Also, it was observed that the Canadian Institute for Administration of Justice (CIAJ) is a global leader in the field of judicial training.67 Initially, this Institute provided training for Canadian judges and lawyers only. However, at some point a demand for courses developed from other countries. Since then, Canadian judges have been sent abroad, for example to Russia and China. Courses taught have concerned, inter alia, the topics of dealing with cultural diversity and the methodology of judicial decision-making. An interviewed judge specified that the National Judicial Institute, which provides training for judges only, is considered to be more important for judicial education than the CIAJ, which offers training for judges and lawyers. This judge was of the opinion that judges feel less inhibited in discussing legal issues in a setting where no lawyers are present. According to an interviewed judge, developing countries prefer to come to Canada for guidance as they consider the United States as negative or too overwhelming, while the United Kingdom and France are in most cases the former colonial power. Canada is perceived to be neutral.68 However, an interviewed judge mentioned that contacts with China and Russia seem to be winding down because of the political changes in these countries. Also, these contacts are not very helpful for the Supreme Court itself. The meetings are considered interesting but have not led to changes in China and hopes regarding Russia have now vanished. Another judge expressed a similar opinion. 66 67 68

See www.nji-inm.ca. See www.ciaj-icaj.ca. See also Bastarache, ‘The Globalisation of the Law’ (n 63) 53.

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The interviewed judges consider that contacts with Western courts are more helpful, as the role of the law is basically the same in these legal systems and a real dialogue can take place concerning problems of common interest. One judge specified that contacts with foreign courts are useful when there is a sense of common purpose. As an example, the judge mentioned the exchange with India regarding innovative remedies developed there. This judge considered that contacts with the ECtHR are most useful, as this court is working with a similar structure as the Supreme Court of Canada. Similarly to the Canadian court, the ECtHR has to weigh different values to reach a decision. Still, it should be taken into account that European views are stronger than Canadian views, for example on the issue of ‘laïcité’ (secularism). A former judge of the Supreme Court of Canada observed that the case law of the Supreme Court has authority in foreign jurisdictions such as Israel, Australia, New Zealand and the ECtHR.69 In sum, the exchange with courts sharing the British Commonwealth background or the English or French language is considered useful. So is the exchange with the ECtHR, whose case law is different but interesting for Canadian judges. Contacts with other Western and non-Western courts are not considered useful to the same extent. (iii) US Supreme Court Most judges of the US Supreme Court have participated in international exchanges. An interviewed judge mentioned having taught in the Netherlands under the auspices of the Columbia Law School AmsterdamLeiden summer programme, which was directed by Professor Hans Smit.70 Some judges have given lectures or have published on the role of the Supreme Court in the global legal context.71 A judge further mentioned a publication by the American Society of International Law (ASIL) containing contributions of 13 judges on the use of foreign law.72

69 The judge referred to the research conducted by Prof Groppi (University of Siena), which shows that Canadian case law is important internationally. See T Groppi, ‘A User-Friendly Court: The Influence of Supreme Court of Canada Decisions Since 1982 on Court Decisions in Other Liberal Democracies’ (2007) 36 Supreme Court Law Review 337. See also T Groppi and MC Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart Publishing, 2013). 70 This programme ran between 1962 and 1988. Prof Hans Smit passed away in January 2012. See www.law.columbia.edu/media_inquiries/news_events/2012/january2012/hans-smit-obit. 71 A list of speeches given by Supreme Court Justices is available at www.supremecourt.gov/ publicinfo/speeches/speeches.aspx. 72 CJ Borgen (ed), ‘A Decent Respect to the Opinions of Mankind …’: Selected Speeches by Justices of the US Supreme Court on Foreign and International Law (Washington DC, ASIL, 2007).

International Relations of the Highest Courts 89 Because of its visibility in American society, international activities of the Supreme Court can draw a lot of attention. In 2012, for example, a conference was organised in Washington, which reunited judges of the US Supreme Court and the ECtHR and legal scholars. The theme of the conference concerned the role of the judicial system in protecting civil and political rights. The participating judges were Justices Alito, Breyer, Kennedy and Sotomayor of the US Supreme Court and current and former judges Bratza, Costa, Vajic, Tulkens and Garlicki of the ECtHR. Topics discussed by the participants in closed sessions included institutional challenges, freedom of expression and extraterritoriality.73 Furthermore, a two-hour public dialogue between Justice Stephen Breyer and Judge Lech Garlicki was on the programme, including discussion about the display of religious signs in the public sphere, abortion and same-sex marriage.74 Specific cases which were addressed concerned the US cases of McCready v ACLU and Van Orden v Perry and the ECtHR cases of Sahin v Turkey and Lautsi v Italy.75 An interviewed judge of the US Supreme Court compared the judicial exchanges between highest courts to the exchange between academics, who also sometimes contact each other to find out about the foreign law in a specific field. This judge considered that a phone call to a foreign colleague might help to better understand an issue which has arisen in one’s own legal system. This judge considered transnational judicial exchanges to be a good means to learn about foreign law. As an example, the judge mentioned lessons learnt about the interpretation of the notion of ‘federalism’. The judge detected resemblances between the notion of federalism in the United States and the principle of subsidiarity in the European Union. The judge considered that the ideas of Hamilton and other ‘founding fathers’ of the United States Constitution can be captured in this principle. Another example concerned the principle of proportionality, which according to the judge is used by the US Supreme Court in the same way as in the European Union. With regard to federalism, the judge further remembered to have learnt much from hearing about EU and Swiss notions of federalism as concerns state officials.76

73 ‘Judicial Process and the Protection of Rights: The US Supreme Court and the European Court of Human Rights’, GW Law, 1 March 2012, available at www.law.gwu.edu/News/ 20112012events/Pages/JudicialProcess.aspx. 74 M Kwiecinski, ‘Supreme Court Justices Convene with European Counterparts’, The GW Hatchet, 1 March 2012, available at blogs.gwhatchet.com/newsroom/2012/03/01/ supreme-court-justices-convene-with-european-counterparts. 75 C McCrudden, ‘Comparing the European Court of Human Rights and the United States Supreme Court’, Constitutional Law Group, 12 March 2012, available at ukconstitutionallaw.org/2012/03/12/christopher-mccrudden-comparing-the-european-court-of-human-rightsand-the-united-states-supreme-court. 76 See further Chapter 5, IB.

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This judge further observed that differences between the judges of the US Supreme Court concerning their interest in foreign law are sometimes exaggerated. According to the judge, these differences, in reality, are not as big as they might seem. For example, Justice Antonin Scalia has often expressed his resistance against the use of foreign law in judicial decision-making, and is therefore considered to be the most fervent opponent amongst the judges concerning this matter.77 Nonetheless, Justice Scalia does have an interest in foreign exchanges. He has participated in many of such exchanges, for example in Italy, Austria and other European countries. (iv) French Highest Courts Judges in the French highest courts are familiar with judicial exchanges, too. According to a French judge, judicial networks are useful for several reasons. First, the participation in these networks provides judges with a possibility to better understand internal solutions chosen in the national legal system. Secondly, this experience nourishes the awareness that the state of the positive law is subject to change. The exchange with their colleagues from other legal systems helps judges to look at their own national law with some distance and from a different perspective. The judge indicated that for him personally the academic work of Antoine Garapon had helped him to come to this understanding.78 Further views of individual judges transpired from the interviews held at the three highest French courts. Concerning bilateral exchanges, a former judge of the Cour de cassation recalled a visit to the Supreme Court of Canada. The judge found it helpful to establish personal contacts, who can be asked for help in specific cases before one’s own court. A current judge mentioned an exchange between the Cour de cassation and the US Supreme Court, in particular with Justice Stephen Breyer. On the basis of this contact, an exchange programme has been established with Cornell University. Professor Claire Germain, who specialises in legal sources, has set up this cooperation. Cornell University has donated many documents to the Library of the Cour de cassation, concerning the US Supreme Court and its judgments. Furthermore, each summer Cornell students visit the Cour de cassation. Finally, Cornell University has financed a comparative legal assistant, first at the Cour de cassation and currently at the Conseil d’Etat. An interviewed judge at the Cour de cassation considered that this exchange programme has opened the eyes of the French judges to the value of foreign law and legal experiences.

77 See, eg N Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519. See Chapter 5, IB. 78 See especially J Allard and A Garapon, Les juges dans la mondialisation: la nouvelle révolution du droit (Paris, Le Seuil, 2005).

International Relations of the Highest Courts 91 However, another judge felt that currently there are not many exchanges of the Cour de cassation with Northern Europe or with North America. This judge specified that the former President Canivet used to be more active in this field, and that Canivet had a good contact with US Supreme Court Justice Breyer. It was observed by several judges that there is no systematic approach to judicial exchanges at the Cour de cassation. A former judge felt that the development of internationalisation in the Court is more about an ‘état d’esprit’ of individual judges. Concerning the participation of the Cour de cassation in transnational networks, the following information emerged from the interviews. The President of the Cour de cassation is a participant in the Network of the Presidents of the Supreme Judicial Courts of the European Union.79 This network has a reunion every two years. Matters discussed by judges in this network have concerned organisational issues, such as the administration of the highest courts and the duration of proceedings. At the inaugural conference, the topic discussed concerned representation and assistance in highest court proceedings.80 The website of the Network features a search engine of National Case Law.81 Alain Lacabarats, a judge in the Cour de cassation, participates in the aforementioned Consultative Council of European Judges (CCJE).82 This committee was founded by the Council of Europe in 2000. It gives advice to the Council of Europe on issues concerning the statute of judges, in particular concerning independence, impartiality and competence. An important achievement of the Council concerned the draft of a ‘magna carta’: a synthesis of the CCJE’s published advisory opinions, focusing on the fundamental principle of the independence of the judicial system. This Magna Carta of Judges was adopted on 17 November 2010.83 It came into being against the background of concern regarding the rivalry between political powers and judges in member states of the Council of Europe. In France, this rivalry was visible in the context of the reform of the Conseil supérieur de la magistrature (Supreme Council for the Judiciary, CSM). Through this reform, members of the judiciary no longer form the majority in the CSM in decision-making about judicial appointments.84 The reform was challenged by the associations of judges and public prosecutors in France, but it was implemented nevertheless through a revision of article 65 of the Constitution.85 79

See www.network-presidents.eu. See www.network-presidents.eu/page/consolidated-report. 81 See http://network-presidents.eu/rpcsjue. 82 See above, n 61. 83 CCJE, Magna Carta of Judges (Strasbourg, 17 November 2010, CCJE (2010) 3 final). 84 See www.conseil-superieur-magistrature.fr/reforme. 85 Syndicat de la Magistrature, ‘Observations du Syndicat de la Magistrature sur la réforme du Conseil Supérieur de la Magistrature’ (Paris, 23 September 2009), available at 80

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Judges of the Cour de cassation have participated in meetings with judges from other French-speaking countries in the Association des Hautes juridictions de cassation des pays ayant en partage l’usage du français (AHJUCAF).86 This network was created in 2001 and currently has 50 members.87 Its website also contains a database of case law. A judge explained that this database was established out of the wish to create an exchange of ideas similar to the existing exchange between common law judges. For French judges participating in this network, it is interesting to take note of the case law in Québec regarding the Code Civil. Case law from Switzerland is also considered useful. However, linguistic challenges can stand in the way of a fruitful exchange, as only some Swiss judgments are published in all of the country’s four official languages.88 Belgium has joined the network only recently. The interviewed judge considered that the Belgian legal system is very interesting from a comparative point of view. Finally, the judge indicated that interesting case law which is available through this network also concerns the former colonies of France, both the older ones in Asia—Vietnam, Cambodia—and the more recent ones. The judge also pointed out the existence of networks similar to this one, reuniting judges who share the same language or cultural background.89 Concerning the Conseil d’Etat, international exchanges feature as a prominent item on the institution’s website. Emphasis is put on the status of the Conseil d’Etat as representing a legal model which originated in France and which has been transplanted into a large number of foreign legal systems, in particular in Europe. This French administrative model, it is thought, could play a leading role in the harmonisation of legal concepts across borders, while simultaneously taking inspiration from foreign models too.90 International exchanges are engaged in under the auspices of the Vice-President and in association with the Council’s Secretary-General.91 The Conseil d’Etat participates in the Association Internationale des Hautes Juridictions Administratives (International Association of Supreme

www.syndicat-magistrature.org/Observations-du-Syndicat-de-la,971.html; Union Syndicale des Magistrats, ‘Observations de l’USM sur le projet de loi organique relatif à l’application de l’article 65 de la Constitution’ (Paris, 30 November 2009), available at www.unionsyndicale-magistrats.org/web/upload_fich/publication/note_projet_de_loi_organique_art_65_ constitution.pdf. 86

See above, n 64. See www.ahjucaf.org/Presentation-et-fonctionnement.html. 88 The published judgments of the Swiss Bundesgericht, which are available in the country’s four official languages, see www.bger.ch/index.htm. 89 Concerning the participation of the Cour de cassation in transnational judicial exchanges, see further G Canivet, ‘Trans-Judicial Dialogue in a Global World’ in Muller and Richards, Highest Courts (n 47). 90 See www.conseil-etat.fr/fr/relations-internationales. 91 Ibid. 87

International Relations of the Highest Courts 93 Administrative Jurisdictions)92 and the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union.93 Furthermore, the Conseil participates in bilateral exchanges with foreign courts, receives foreign visitors and participates in judicial training programmes abroad. Individual members of the Conseil further take part in conferences and might provide expertise to foreign counterparts.94 A detailed overview of the Conseil’s international activities in 2009 and 2010 can be found on its website. An exchange which was considered particularly important concerned the visit of a delegation of judges of the UK Supreme Court in October 2010. During a seminar held at the Conseil d’Etat, the participating judges discussed recent institutional reforms in France and in the United Kingdom, as well as influences of ECHR provisions on national fundamental rights in these two countries.95 Further exchanges took place with courts and judicial networks around the world.96 At the Conseil constitutionnel, its then-President Robert Badinter took the initiative to make the Council a member of the Conference of European Constitutional Courts.97 The Conseil became a member of this network in 1987, and organised a meeting of the network in Paris in 1993.98 Badinter has written that the openness to international exchange has formed part of the ‘politics’ of all presidents of the Conseil constitutionnel. He is of the opinion that this openness has stimulated the recognition by the constitutional courts in foreign jurisdictions of the Conseil’s function as a true constitutional judge.99 Other networks, too, are considered important for judicial exchange. The former President of the Conseil constitutionnel, Roland Dumas, indicated the importance of the creation, in 1997, of the association of constitutional courts sharing the French language.100 This network was established by Dumas with the support of President Chirac. The association has held reunions in, inter alia, Paris, Beirut, Gabon and Hanoi.101 Its significance is also mentioned by Michel Ameller, who was a member of the Conseil

92

See www.aihja.org. See www.aca-europe.eu. 94 See www.conseil-etat.fr/fr/laction-internationale. 95 See www.conseil-etat.fr/fr/bilan-2010. 96 Ibid. See also www.conseil-etat.fr/fr/bilan-2009. 97 See www.confcoconsteu.org/en/common/home.html. 98 R Badinter, ‘Une longue marche “Du Conseil à la Cour constitutionnelle”’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 99 Ibid. 100 See www.accpuf.org. See also A Lancelot, ‘Où il est question du bonheur au sommet de l’Etat’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseilconstitutionnel.fr. 101 R Dumas, ‘Un Conseil ouvert sur le monde’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 93

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constitutionnel between 1995 and 2004 and who recalls fruitful meetings with, inter alia, the president of the Lebanese court of cassation.102 Former member of the Conseil constitutionnel Alain Lancelot, in a published article, recalled having feared to lose the opportunity for international exchange which he had when working in the academic environment of Sciences Po. However, as a member of the Conseil constitutionnel he was glad to discover the involvement in exchanges, bringing him, inter alia, to Taiwan, Sri Lanka, Madagascar and Romania. An important exchange concerned his visit, with Pierre Mazeaud and Georges Abadie, to New Caledonia, where the Conseil constitutionnel on the basis of the Agreement of Nouméa of 1998 had become the judge of the ‘lois de pays’ (local laws of the overseas communities).103 Interestingly, significant cultural differences posed difficulties for the discussion, in particular the opposing conceptions of citizenship from the Western individualist perspective and the local tribal perspective. The visiting members of the Conseil constitutionnel did not fully succeed in clarifying the future role of the Council, as was remarked by the then-president of the Council in a speech.104 This example suggests that judicial exchanges can be useful in order to identify specific issues and to enable a debate about these issues between the affected courts. When comparing the French experiences to the activities of the AngloSaxon judges, some similarities and some differences can be identified. The French judges engage in bilateral visits with foreign courts and in transnational judicial networks for similar reasons as their counterparts in the United Kingdom, Canada and the United States. The choice of partners for this communication, as in the Anglo-Saxon courts, is based first and foremost on shared legal tradition and language. For the French judges, this means that exchanges are preferred with other French-speaking courts and with courts in legal systems based on the French model. A shared ideological background, reflecting the principle of the rule of law, and a shared level of legal development form a basis for further exchange with courts in other Western legal systems. In this regard, the exchange between the Cour de cassation and the US Supreme Court is remarkable, because of the extent to which this exchange has been institutionalised. In the European legal context, transnational activities of the French judges are further stimulated by the participation of France in the European Union and the Council of Europe.

102 M Ameller, ‘Retour sur le Conseil’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr. 103 Lancelot, ‘Où il est question du bonheur’ (n 100). See also Accord sur la NouvelleCalédonie signé à Nouméa le 5 mai 1998, JORF no 121 du 27 mai 1998, 8039, para 2.1.3. 104 Mentioned by Lancelot, ‘Où il est question du bonheur’ (n 100).

International Relations of the Highest Courts 95 (v) Dutch Highest Courts The participation of judges and Advocates-General of the Hoge Raad in judicial networks varied between individuals. A small number of the interviewed persons indicated that they hardly participate in exchanges with peers or that they prefer to read a book at home rather than to participate in foreign exchanges. However, most judges and Advocates-General mentioned examples of networks in which they or their colleagues have participated. These examples included the participation of the President and the Procurator-General in the Network of the Presidents of the Supreme Judicial Courts of the European Union,105 and the participation of individual judges in the International Association of Judges (IAJ-UIM)106 or in exchanges of Intellectual Property judges.107 A judge mentioned the interest within the Hoge Raad, in light of the proposal of the Hammerstein Committee,108 in information concerning the functioning of systems of case selection in Scandinavian countries. The Hague Institute for the Internationalisation of Law (HiiL)109 was considered a helpful provider of contacts with judges in foreign jurisdictions and a helpful organiser of exchanges concerning institutional questions. On the topic of case selection, HiiL and the Hoge Raad organised a seminar in The Hague in April 2010, reuniting judges of the Hoge Raad and their counterparts from France, Finland, Spain and Denmark.110 Furthermore, the Hoge Raad sometimes welcomes foreign delegations, in particular from courts in developing countries. In this respect, contacts exist, for example, with courts in the former Dutch colony of Indonesia. Finally, judges and Advocates-General mentioned their participation in conferences, seminars and judicial training programmes. A small number of judges had done two-week ‘internships’ at the Cour de cassation in France or the Bundesgerichtshof in Germany. Furthermore, two Belgian judges had done internships at the Hoge Raad. In the field of tax law, foreign exchanges were considered to be less frequent than in the other fields of competence of the Hoge Raad. A reason advanced by an interviewed judge was that no international platform for debate between tax law judges exists. It should be noted, too, that jurisdiction in tax law cases is organised very differently in national legal systems.

105

See above, n 79. See www.iaj-uim.org. 107 For example, in the framework of the Intellectual Property Judges Association in Venice. See E Lazega, ‘Mapping Judicial Dialogue across National Borders: An Exploratory Network Study of Learning from Lobbying among European Intellectual Property Judges’ (2012) 8 Utrecht Law Review 115. 108 See Chapter 3, IIC. 109 See www.hiil.org. 110 HiiL, ‘Managing Workloads at Highest Courts through Case-Selection’, available at www.hiil.org/insight/managing-workloads-at-highest-courts-through-case-selection. 106

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For example, specialised chambers for the judgment of tax law cases exist in Germany but not in Belgium. According to the interviewed judges and Advocates-General, topics discussed during judicial exchanges can concern organisational and procedural matters as well as issues of substantive law. An interviewed AdvocateGeneral recalled firm discussions concerning, inter alia, the implementation of the ECtHR’s case law on reasonable delays into the domestic law. Sometimes, the importance of an ECtHR judgment is noticed sooner by a judge from a foreign jurisdiction, which then makes the exchange worthwhile. A judge confirmed that foreign exchanges sometimes help to gain insight into current developments. Another Advocate-General remembered a fruitful discussion concerning judicial errors in the Netherlands in light of studies on this topic which had been conducted in the United States and Canada. The interviewed judges and Advocates-General pointed out opportunities and challenges related to the participation in judicial networks. In this light, it was observed that participation in these exchanges is time-consuming. Furthermore, a problem with networks is that the delegates of the participating courts change frequently. Also, language poses a significant obstacle in international exchanges. A judge of the Civil Law Chamber considered that country reports and comparative legal research often do not yield useful results. The judge felt that this was related to the differences which exist between judicial approaches and between legal problems in different jurisdictions. This view was shared by another judge, who was of the opinion that exchanges at international conferences and in judicial networks are often too open-ended. Yet another judge, who had visited the Bundesgerichtshof in Karlsruhe, observed that the drawing of lessons from the German practice is difficult because of organisational and procedural differences. In particular, no Advocate-General participates in the decision-making of the German Court. Furthermore, the Bundesgerichtshof can select its cases, whereas the Hoge Raad currently still has to decide all incoming cases. A judge of the Criminal Law Chamber was more optimistic, and submitted that the Hoge Raad should engage more in debate with other highest courts, both in the Netherlands and abroad. Another judge felt that the personal contacts established in the framework of judicial exchanges made it easier to ask for assistance when faced with a specific problem in a domestic case later on. This judge recalled that questions had been posed by foreign judges occasionally, for example by Justice Michael Kirby of the High Court of Australia who had made the acquaintance of Dutch judges through the HiiL network. However, the interviewed judge felt that personal contacts of judges are used in a very ad hoc manner. A judge of the Raad van State, too, specified that the learning about foreign law often takes place through personal contacts. This judge considered that international contacts are a luxury. The judge mentioned

International Relations of the Highest Courts 97 personal contacts with the President of the Belgian Constitutional Court, the Grondwettelijk Hof. This judge also mentioned contacts established through the Venice Commission, of which the Raad van State is a member.111 This Commission has a plenary meeting every three months. During these meetings, constitutional matters in a broad sense of the term are on the agenda. As an example, the judge mentioned the determining of matters which should be susceptible to form the object of a referendum. Another example concerned the settlement of disputes containing a constitutional element. Another judge also mentioned contacts with the Belgian Constitutional Court, as well as exchanges with the French Conseil d’Etat. This judge recalled that contacts with judges of new EU Member States had occurred at the conference of the Association of the Councils of State, of which the Raad van State is a member.112 However, the judge considered that exchange with these foreign colleagues was difficult because of language problems, and because in these new Member States less expertise exists concerning EU law. Informal contacts exist between members of the Raad van State and the Dutch judges in the ECtHR and CJEU, at the time of the interviews Judge Egbert Myjer and Judge Sacha Prechal. When he was President of the judicial section of the Raad van State, Pieter van Dijk brought in his own expertise as a former judge of the ECtHR. An interviewed judge of the Council considered these contacts to be important, but emphasised that the available published documents, in particular case law, generally provides sufficient information for the decision-making of the Raad van State. A liaison officer, affiliated to the Secretariat of the Raad van State, is in charge of maintaining the Raad van State’s contacts with the Council of Europe. The liaison officers from different countries consult each other in the framework of the Joint Council on Constitutional Justice. Questions of the Raad van State concerned amongst other things the mentioning of the Dutch language as the official language in the Constitution of the Netherlands. Through the Joint Council on Constitutional Justice, a request was sent out to gather information regarding this topic. Requests to and from the Venice Commission are distributed by email and relevant background information is enclosed. The liaison officers are expected to send in a reply to requests from others. They write these reactions in their personal capacity. The liaison officers meet once a year in June, alternatively in Venice and in the capital of a member state of the Venice Commission. In 2011, this meeting took place in the Turkish capital Ankara. The interviewed liaison officer considered that these meetings have added value by providing an opportunity to discuss the answers to specific requests in person, including

111 112

See www.venice.coe.int. See above, n 93.

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the effect of these answers. The officer felt that the information received in reply to the request concerning constitutional language provisions was very useful. More generally, this liaison officer considered that received replies can have an influence in legislative advice. However, the Raad van State seems to be reserved concerning the transposition of solutions from other legal systems.113 Furthermore, requests to the Constitutional Law Commission in the Raad van State can be combined with a request to the Venice Commission. Yet, the interviewed liaison officer pointed out that in the 25 requests for information sent by the consultative and judicial sections to the Constitutional Law Commission in 2010, input was asked simultaneously of the members of the Venice Commission only in three cases. This might be explained by the fact that the brief delays in legislative consultation generally create time pressure and in this way discourage requests to the Venice Commission. The liaison officer further mentioned that the Association of Councils of State has a closed forum on the Internet, through which members can ask questions. This cooperation entails fewer commitments than the participation in the Venice Commission. According to the liaison officer, questions asked most often concern the search for comparable cases elsewhere. This search may include questions concerning the application of EU law. In sum, the Dutch judges are active participants in transnational judicial exchanges. As in the other examined courts, factors which motivate the choice for specific visits or the participation in specific networks are the shared background of Western legal systems and the involvement in the European Union and Council of Europe. Interestingly, the Dutch judges show an interest to learn from other small legal systems, such as the Scandinavian countries. Finally, the proficiency of many Dutch judges in foreign languages enables them to take part in exchanges in, inter alia, English, French and German.

B. Individual Views Concerning Globalisation The described experiences with judicial exchanges reveal different personal assessments concerning the usefulness of these exchanges. These assessments can be connected with the views of the judges concerning the trend of globalisation and the perceived effects of this trend on their judicial work. Some judges have expressed their ideas on this topic, in interviews or in published speeches and writings. From this information, a picture emerges of profoundly different views, which ultimately are related to the normative approaches of judges to judicial decision-making. These views are analysed

113

See further below, IIB.

International Relations of the Highest Courts 99 hereunder, focusing on: (1) the involvement of judges in debates about globalisation; (2) the existence of different mind-sets of judges concerning global influences on judicial decision-making; (3) the influence of judicial politics on the development of judicial internationalisation; and (4) the influence of the personal background of judges on their approaches to the internationalisation of the law. (i) Involvement in Debate About Globalisation The Canadian former Supreme Court Justice Michel Bastarache has related the current debates about judicial internationalisation to the traditional distinction which is made between domestic and foreign legal orders. Domestic and international law were considered an integrated system in the eighteenth and nineteenth centuries. However, since the rise of the nation-state, international and domestic law are considered to constitute two separate systems. According to Bastarache: Indeed, perhaps the greatest challenge facing the political and legal order of the 21st century is to navigate our way through these seemingly competing ideals of sovereignty and internationalism … [T]he Canadian domestic legal system has negotiated this delicate balance by being open to international ideas and principles but remaining committed to its fundamental principles and the coherence of its jurisprudence.114

Confirming this observation, an interviewed judge in Canada pointed out that recent academic debate has focused on the rise of global constitutionalism, and that Canadian jurists take part in this debate.115 Amongst legal scholars and legal professionals worldwide, including judges, there seems to be an increased interest in debate about the development of the law and the institutions of government in the globalised legal context. An interviewed judge observed that this interest is visible, for example, in the work of scholars in the United States at prestigious universities, such as Yale, NYU and Georgetown. These scholars increasingly pay attention to the trends of constitutionalism and globalisation, and to the development of human rights and constitutional review. In light of this interest, exchanges between judges and academics from different jurisdictions were organised. Three judges from Canada, the United States and France mentioned their involvement in the Global Constitutionalism Seminar, organised annually at Yale Law School.116 This seminar reunites 30 judges from supreme courts around the world. Participants in these seminars have included Aharon Barak 114

Bastarache, ‘The Globalisation of the Law’ (n 63) 50. See in this respect the legal journal Global Constitutionalism—Human Rights, Democracy and the Rule of Law (GlobCon), of which the first issue was published in March 2012. 116 See www.law.yale.edu/intellectuallife/globalconstitutionalismseminar.htm. 115

100 Incorporating the Transnational (Supreme Court of Israel) and Dieter Grimm (Bundesverfassungsgericht). The interviewed judges felt that participating in this seminar has had an influence on their personal views regarding judicial decision-making in the globalised world. The themes discussed are very diverse. In 2010, the theme concerned the fundamental principles of new technologies.117 The involvement of the examined courts in debate concerning this trend of globalisation differs between countries. It seems that similarities and differences relate to considerations regarding the position of a highest court in the globalised legal context. In the Canadian debate, the interest in globalisation has remained unabated for the last 20 years, after the end of the Cold War. According to an interviewed judge, Canadian jurists are aware of their ‘cousins in the common law systems’. This view is corroborated by the analysis of the Supreme Court’s case law, in which sources from other common law jurisdictions can be found to be cited more often than sources from other foreign jurisdictions.118 A similar approach exists in the UK Supreme Court, where the judges also expressed awareness of their responsibility concerning the development of the common law. In the United States, the interaction between the domestic legal order and international law has never been an easy topic. Over the years, a change has taken place in judicial approaches regarding the role of international law in the domestic legal system. It has been suggested in the literature that this changed perception is connected with ‘considerations of America’s place in a globalizing, interdependent, world’.119 Speeches which US Supreme Court Justices have given to the ASIL reflect the shift in emphasis that has occurred. Initially, judges would focus on the question how the United States, as an emerging military and economic power, would affect the world.120 In their speeches to the ASIL, judges considered the role of the law in times of war and peace and the role of America in building a new international legal order.121 Speeches made in the 1990s and 2000s, by contrast, focus on the impact of international law in the domestic legal system of the United States. These speeches concentrate on the actual work of judging claims brought to the Supreme Court, and the role which foreign and international law can play in deciding on these claims.122 With regard

117 Supplemental readings for the seminars are available at the Yale website. See, for the 2010 session, www.law.yale.edu/academics/13708.htm. 118 See Chapter 5, IIB. 119 CJ Borgen, ‘Foreword: The Nation of Laws and the Law of Nations’ in Borgen, ‘A Decent Respect to the Opinions of Mankind’ (n 72). 120 Ibid. 121 Ibid, and the speeches for the ASIL by Justices Taft, Hughes, Roberts and Jackson. 122 Ibid, and the speeches for the ASIL by Justices Blackmun, O’Connor, Breyer, Scalia and Ginsburg.

International Relations of the Highest Courts 101 to the judges in this era, it is observed that ‘this is the first generation of judges that is truly coming to terms with how the world may affect us’.123 The debate in Europe is less outspoken. When comparing France and the Netherlands, the size of the legal system seems to influence the involvement of judges in debate about globalisation. A former judge of the Cour de cassation considered that judges in the Netherlands are more active and more open to judicial internationalisation than their French counterparts. The judge thought that this could be explained by the small size of the Netherlands as compared to France. The openness to the outside world can also be identified in the historical conquests of the Dutch. This judge felt that progress is faster in the Netherlands than in France. Judges do not seem to feel that globalisation is changing the role of the highest national courts as such. An interviewed Canadian judge felt that the Supreme Court of Canada will remain influential in the domestic legal system, since it is the final court of appeal to which the legal community is obliged to pay attention. There will always be tensions between courts, on the one hand, and Parliament and Government, on the other hand, as the Supreme Court will have competence for the review of at least some laws. However, in the drafting of decisions it is likely that more citations to international and foreign law will be used. According to this judge, there is an increasing awareness amongst the Supreme Court judges of the impact of international law in the domestic legal system. Another judge predicted that in the future foreign law will become more important and yield more ideas. Judges will have a bigger need to understand what others are doing, and they will look for a benchmark in international and foreign law. Still, it was observed by a Canadian judge that judicial reflection on the effects of globalisation is often only engaged in after an event occurs. This judge mentioned the example of the International Commission of Jurists, which started a discussion concerning the independence of the judiciary in light of the International Court of Justice’s treatment of the Israeli invasion of Lebanon. It appeared that the majority of the judges participating in this discussion considered international opinion to be a social fact. However, the judges of the Supreme Court of Canada were more hesitant. Some of the judges felt that the ICJ coverage should have been more pro-Israel or they felt that the ICJ was getting too far into matters of political controversy. With the exception of Justice Binnie, all Canadian judges resigned from the International Commission because they found the discussed subject matter too politically charged. An important further observation, made by one of the Canadian judges, is that the judges who go abroad are always the same ones. Also in the other examined countries, it seems that only a small number of judges are

123

Ibid.

102 Incorporating the Transnational interested in actively contributing to foreign exchanges. According to the interviewed Canadian judge, no change in judicial attitudes concerning foreign law can be expected in the short term. Judges should become more open-minded, but they do not have enough opportunity to give reflection to aspects of judicial internationalisation. However, some judges of the Supreme Court of Canada make efforts to promote judicial engagement with foreign law. For example, an initiative has been started by the Canadian Bar Association124 to collect knowledge on foreign legal systems. Former Justice Bastarache, who currently works in a law firm, is involved in this project. Similar developments can be identified in the other examined courts, for example in the initiatives of individual judges concerning the development of research about international and comparative law within the highest courts.125 (ii) Influence of ‘Globalist’ and ‘Localist’ Mind-Sets of Judges Some judges have addressed the possibility of personal influences of judges on judicial decision-making. In this context, Justice Aharon Barak, the former President of the Supreme Court of Israel, has used the term ‘judicial philosophy’. He has defined this notion as ‘an organised thought about the way in which a judge is to contend with the problematics of a hard case’ or in other words ‘a system of considerations that the judge takes into account when exercising discretion’.126 The philosophy of an individual judge includes the convictions of this judge about the proper role of courts within the national political system in which the judge is working.127 It is at the core of the debate about judicial activism. In light of this debate, the Canadian Justice Binnie, in an interview on the occasion of his retirement from the Supreme Court of Canada, acknowledged that all judges arriving at the Supreme Court bring their experiences and views with them. However, he emphasised that the influence of personal beliefs and backgrounds on judging should not be overestimated. He observed: I think that the media greatly overstates the room for personal views and biases. When I got to the court and participated in court conferences, the overwhelming issue was one of professionalism … I think that as far as the judges are concerned, every judge believes he or she is interpreting and applying the law.

124

See www.cba.org. See below, IIIA. 126 A Barak, The Judge in a Democracy (Princeton, NJ, Princeton University Press, 2006) 118. 127 CL Eisengruber, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton, NJ, Princeton University Press, 2007) 99. 125

International Relations of the Highest Courts 103 Whether others accuse the court of making up the law or not depends on whether they agree with the outcome.128

Concerning the use of non-binding foreign law in judicial decision-making the consideration to be made has a different focus. Indeed, then the issue concerns not so much the discretion of a judge concerning the choice of a possible solution for a case, but concerning the sources which the judge can take into account in the process of making this choice. In other words, the issue concerns the judicial methods of decision-making, in particular the willingness and ability of judges to consult non-binding foreign legal sources for comparative purposes. Some judges feel that foreign law and foreign experience can inform the decision-making of a national court. We will call these the ‘globalist’ judges. Other judges reject the use of foreign law in judicial decision-making, because they feel that sources which do not have formal authority have no place in the deliberations and reasoning of national courts. These judges, who emphasise the particularities of the national legal system, can be called ‘localist’ judges.129 The different mind-sets of individual judges are apparent in views which judges have expressed publicly concerning the judicial role. Justice Aharon Barak, who is an influential participant in transnational exchanges involving judges as well as academics, epitomises the mind-set of the ‘globalist’ judge. He has said that: When a national jurist—a judge, a professor of law, or an attorney—is confronted with the need to understand a legal phenomenon—for example, ‘what is law?’; ‘what is a right?’; ‘what is a legal person?’; ‘what is the relationship between morality and law?’—that jurist is certainly permitted, and it is even desirable, to examine the understanding of legal phenomena and legal concepts beyond his national framework. These are all universal aspects which cross national boundaries, and in order to understand them, it is worthwhile to turn to all thought which has been developed on the subject, be its geographical origin as it may. So did our forefathers through the years. And so did Holmes, Cardozo (judges), Roscoe Pound, Hohfeld, Fuller, Llewellyn (professors), and many others. They did not shut themselves inside their national borders. The entire world was before them.130

128 K Makin, ‘Justice Ian Binnie’s exit interview’, Globe and Mail (Toronto), 23 September 2011. Academic research has suggested that ideological divisions between Canadian Supreme Court judges do have an influence on the voting of the judges in individual cases; see CL Ostberg and ME Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancouver, UBC Press, 2007). 129 See Chapter 2, III. 130 A Barak, ‘Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia’ (Law Symposium: International Influences on National Legal Systems, Haifa, 29 January 2006), available at www.fulbright.org.il/fileadmin/fulbright/editor/ images/news/Documents_for_news/Barak_50th_symposium_speech.doc.

104 Incorporating the Transnational This view on the purpose of examining foreign law is reflected in the analysis by then-US Court of Appeals Judge Sonia Sotomayor concerning the use of foreign law by the judges who would become her colleagues on the US Supreme Court. In a public speech held before her appointment on the Supreme Court, she said the following about the use of foreign law in the US Supreme Court’s judgments in Roper v Simmons131 and Lawrence v Texas:132 In both those cases, the courts were very, very careful to note that they weren’t using that law to decide the American question. They were just using that law to help us understand what the concepts meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking. There may well be times where we disagree with the mainstream of international law. But there is much ambiguity in law, and I for one believe that if you look at the ideas of everyone and consider them and test them, test the force of their persuasiveness, look at them carefully, examine where they’re coming from and why, that your own decision will be better informed.133

Contrasting with this view, some judges have vehemently condemned the judicial search for inspiration outside of the national legal framework. Most famous is the view of US Supreme Court Justice Antonin Scalia. In his dissenting opinion in the case of Roper v Simmons, which concerned the constitutionality of the juvenile death penalty, Justice Scalia argued that the majority had given too much weight to foreign law and international opinion. He presented the following criticism of the Supreme Court’s reasoning in this case: Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage … [T]he basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand … I do not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles any more than (what should logically follow) disapproval by ‘other nations and peoples’ should weaken that commitment … What these foreign sources ‘affirm’, rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. ‘Acknowledgment’ of foreign approval has no place in the legal opinion of

131

Roper v Simmons, 543 US 551 (2005). Lawrence v Texas, 539 US 558 (2003). 133 S Sotomayor, ‘How Federal Judges Look to International and Foreign Law under Article VI of the US Constitution’ (American Civil Liberties Union of Puerto Rico, San Juan, 28 April 2009), available at video.nytimes.com/video/2009/06/10/us/politics/1194840839480/speechto-the-a-c-l-u-of-puerto-rico.html. 132

International Relations of the Highest Courts 105 this Court unless it is part of the basis for the Court’s judgment—which is surely what it parades as today.134

This argument can be considered representative of a ‘localist’ judicial mindset. According to Justice Scalia, the judges of the US Supreme Court should only consult formally binding legal sources in the process of legal discovery and in the justification of their decision. An in-between position was formulated by an interviewed judge of the Dutch Raad van State. This judge did not reject the search for inspiration in foreign law, but expressed reservations with regard to the usefulness of legal comparison in judicial decision-making. According to this judge, comparative law is interesting for judges only in an abstract sense. The judge felt that comparative law should only be used at the level of concepts and that it should only serve as an inspiration. The judge considered that the point of departure for the use of comparative law should be the usefulness for pending cases, combined with the requirement of celerity of proceedings. Both the ‘globalist’ and the ‘in-between’ view accept the study of nonbinding foreign legal sources for judicial decision-making. However, the two views are connected to different ideas about the possibility of a convergence of legal regimes. The Dutch judge described himself as a relativist, meaning that he considers contextual and cultural aspects of legal systems to be a limiting factor for the harmonisation or transplantation of legal solutions. This relativist point of view is based on the idea that it is impossible to find absolute universal standards for the realisation of justice. In this sense, the ‘in-between’ position resembles the ‘localist’ view. The ‘globalist’ judges, by contrast, feel that a convergence of legal regimes in the world can be realised. This idea is echoed in the view expressed by Justice Barak as well as the aforementioned description by Anne-Marie Slaughter, depicting courts in different jurisdictions as ‘partners in a common judicial enterprise’.135 Another clear example of globalist thinking can be found in a public lecture of US Supreme Court Justice Stephen Breyer. He observed that comparative law and public international law increasingly have an impact at the same institutional and substantive levels. This is the case, for example, in the field of commercial law in the United States, where state laws have been unified across state borders and even across national borders.136 According to Justice Breyer, this development is representative of a desired—and apparently possible—convergence of legal regimes: These growing institutional and substantive similarities are important, for to a degree they reflect a common aspiration. They reflect a near universal desire for

134

Roper v Simmons, 543 US 551 (2005), dissenting opinion of Justice Scalia, paras 16–23. Slaughter, A New World Order (n 59). 136 S Breyer, ‘The Supreme Court and the New International Law’ (ASIL, Washington, DC, 4 April 2003). 135

106 Incorporating the Transnational judicial institutions that, through guarantees of fair treatment, help to provide the security necessary for investment and, in turn, economic prosperity. And through their respect for basic human liberty may help to make that liberty a reality.137

In light of these opposing and irreconcilable normative positions, ‘globalist’ and ‘localist’ highest court judges might be obliged to content themselves with an agreement to disagree.138 (iii) Judicial Politics Other actors with public power might not be willing to let a highest national court develop its own approach concerning the use of foreign legal sources. The example of the United States reveals that the ‘globalist’ or ‘localist’ mind-set of judges can be of importance in judicial appointments. Political views concerning the use of foreign law have gained an influence on the appointment of new judges to the US Supreme Court. Nominees for US federal court judgeships are usually asked by the members of the Senate Judiciary Committee: Does the nominee understand, and will she abide by the understanding, that policy and law making are the domain of the Legislature, while the job of a judge is simply to read and apply the law as written by legislators?

In a lecture for the British Law Commission, US Supreme Court Justice Ginsburg pointed out that this role description glosses over important aspects of judging in the US legal system. These aspects are: the common law tradition of judge-made law; the occurrence of cases where the law is ambiguous or silent; and the requirement to review ordinary laws in light of the national Constitution or international law.139 This controlling role of the Senate is exemplary of the relationship between the US Supreme Court and the other branches of government generally. Justice Ginsburg pointed out that Congress keeps a close watch on Supreme Court decisions concerning the interpretation of statutes. She referred to research which shows that, since 1975, almost half of these decisions have been the subject of congressional hearings, and that approximately a dozen decisions were overridden by Congress.140 This political aspect is considered to have added to the controversy about the use of foreign law in the Supreme Court’s decision-making.141

137

Ibid. See further Chapter 6, I. 139 R Bader Ginsburg, ‘Judicial Stimulation of Legislative Change: A View from the United States’ (Third Leslie Scarman Lecture, London, 11 February 2010), 3, available at lawcommission. justice.gov.uk/docs/scarman_lecture_110210.pdf. 140 Ibid 6. 141 See Chapter 5, IB. 138

International Relations of the Highest Courts 107 Judges themselves, too, have engaged in politics concerning the reform of highest courts or the presentation of its work to the outside world. Some individual judges have been of particular importance in such reforms and debates. The late Lord Bingham of Cornhill is considered a key figure in the coming about of the reforms in the United Kingdom concerning the introduction of the HRA 1998 and the establishment of the UK Supreme Court.142 A French judge remarked how influential the former President of the Cour de cassation, Guy Canivet, has been in representing this Court at the transnational stage. Canivet was considered by the judges on his Court to have a ‘rayonnement international’ and of a symbolic nature. He visited many countries all over the world, usually accompanied by a team from the Court. He was president of the Network of the Presidents of the Supreme Judicial Courts of the European Union, and welcomed colleagues from other highest courts at this Network’s inaugural reunion in Paris in 2004.143 In the Netherlands, the President of the Hoge Raad, Geert Corstens, who took office on 1 November 2008, was hailed as a leader in debates concerning the internal reform of the Court and concerning its visibility in the Dutch society as well as in the European legal context. He has expressed his views in a series of public speeches, which are available online.144 In the United States, several judges can be considered to be leaders in the Supreme Court. Concerning the participation in foreign exchanges and the use of foreign law in the Court’s decision-making, Chief Justice Roberts as well as Justice Scalia, Justice Breyer, Justice Ginsburg and Justice Kennedy have made influential contributions through judgments or dissenting opinions, and through public speeches.145 In Canada, too, several Supreme Court judges have been leaders in the development of the Court’s working methods and its case law, both through their judicial work and through public speeches. The Chief Justices, in particular, have been influential in this respect.146 (iv) Personal Background According to the interviewed judges, the background of individual judges certainly has an influence on their approach to the use of foreign law. This 142 B Hale, ‘A Supreme Judicial Leader’ in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford, Oxford University Press, 2009). 143 See www.network-presidents.eu/page/inaugural-speech-mr-canivet. 144 See www.rechtspraak.nl/Organisatie/Hoge-Raad/OverDeHogeRaad/Pages/Toespraken. aspx. 145 See Chapter 5, IB and IIB. 146 P McCormick, ‘Assessing Leadership on the Supreme Court of Canada: Towards a Typology of Chief Justice Performance’ (1993) 4 Supreme Court Law Review 409. Concerning the influence of individual judges on the development of the Supreme Court’s decisionmaking, see DR Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (Toronto, University of Toronto Press, 2008).

108 Incorporating the Transnational background encompasses both personal beliefs about judicial decisionmaking, as well as confrontations with foreign law in the earlier lives and careers of the judges. Factors found to be important by the interviewed judges concern personal experiences with foreign cultures, which can develop through studying or working abroad or through family relations, for example, marriage to a foreign partner. Several judges emphasised the importance of legal education. A Canadian judge pointed out that his interest in comparative law developed in law school, and was incited by some very good teachers. The judge specified that he has benefited from training in civil law as well as in common law. He felt that his interest in comparative law has increased since he has joined the Supreme Court. A judge of the US Supreme Court observed that law students in the United States are not sufficiently exposed to the law of foreign legal systems. There are few comparative law courses, and not many materials. The judge mentioned the books by Dorsen and others,147 and by Jackson and Tushnet.148 Interestingly, this judge indicated that knowledge of comparative law is not a criterion used when hiring new law clerks. The judge considered that they learn fast enough on the job. However, this view was not shared by interviewed judges in other examined courts. Several of these judges emphasised the importance of law school education on comparative law. Students should be trained to know where to look for useful references to solve cases. Concerning prior professional experiences, a Canadian judge considered that judges who used to be academics are not necessarily more interested in foreign law than judges who used to be practitioners. This judge was a practitioner before joining the Court. By contrast, other judges felt that judges who were practitioners usually hold on to a more pragmatic approach. Judges who are former academics, to these judges, seem to be more open to inspiration from foreign law, even though the study of foreign sources is sometimes not practical and time-consuming. A judge of the Dutch Raad van State further observed that judges with an academic background often have more international contacts than judges with other professional backgrounds. These judges also seem to have a better knowledge of foreign languages. This was in particular clear in the United Kingdom, where the judges with an academic background more often indicated to have knowledge of German and French than the other judges did. In Canada, some judges had the advantage of a bilingual upbringing. Several judges observed that a personal interest in foreign law also depends on the focus of the individual judge. Someone who has most 147 N Dorsen et al, Comparative Constitutionalism: Cases and Materials, 2nd edn (New York, West Publishing Co, 2010). 148 VC Jackson and MV Tushnet, Comparative Constitutional Law, 2nd edn (New York, Foundation Press, 2006).

International Relations of the Highest Courts 109 affinity with property law will have less reasons to be interested in foreign judgments than someone who is specialised in cases concerning more internationalised fields of the law. Finally, a judge of the US Supreme Court felt that every person is formed by their background and experiences. Therefore, judges, even if they oppose the recourse to foreign law in judicial decision-making, will be influenced by their foreign experiences. Still, the judge thought that it would not be possible to tell how these experiences affect the decision-making of judges in individual cases. Based on the views expressed in the interviews, we can conclude that the individual views of judges concerning the trend of globalisation are informed by their personal experiences with foreign law, and determine their current approach to the use of foreign law in judicial decision-making. The existence of ‘globalist’ and ‘localist’ views within one court can result in a polarisation in the court, in particular in systems in which judges are permitted to issue dissenting opinions. In such a polarised context, which exists in the United States, the approaches of judges concerning the use of foreign law can become a matter of politics regarding new judicial appointments. In a more neutral setting, the differences between ‘globalist’ and ‘localist’ judges can foster a fruitful debate about the influence of globalisation on the position and decision-making of the highest national court. Examples of such debate are most visible in Canada and to a lesser extent also in the United Kingdom, where judges can express their personal lessons learnt from foreign law in individual opinions. In France and the Netherlands, a small number of judges have become involved in emerging debates about the use of foreign law, most importantly in the context of bilateral and multilateral exchanges with judges and academics.149

C. National Judges in International Courts International relations exist between highest courts. However, transnational communication between judges can also exist within courts. The possibilities for exchanges of legal ideas and experiences between judges from different national and cultural backgrounds exist in optima forma in the institutional setting of international and supranational courts. Since our research focuses on highest national courts, we will not analyse these exchanges in a comprehensive manner. However, a number of interesting observations can be made on the basis of available information concerning the role of national judges in international and supranational courts.

149

See above, IIA.

110 Incorporating the Transnational The influence on individual judges of contacts with colleagues most often cannot be deduced from the published judgments or concurring or dissenting opinions. However, a striking example occurred in Sanoma v The Netherlands, which was decided by the ECtHR in 2010.150 The case concerned the magazine Autoweek, which had published a feature on an illegal street race. The question to be answered by the Strasbourg Court was whether the magazine could be obliged to reveal its sources, knowing that this could lead to the arrest of those who had participated in the illegal street race.151 In this case, the Dutch Judge Egbert Myjer sat on the judicial panel both in the Chamber which first judged the case and in the Grand Chamber which judged it on referral from the Chamber. Judge Myjer changed his vote, and gave the following explanation in a concurring opinion with the Grand Chamber judgment: In the deliberations of the Grand Chamber in the present case there was an overwhelming majority in favour of violation. In the Chamber I was one of four to three who found no violation. It seems to be that any judge who is a lone voice against all others in the Grand Chamber will have to come up with very persuasive arguments indeed, but a national judge even more so. A suspicion may well arise that that judge is incapable of taking the necessary critical distance of legal practice in his or her country of origin. The fact is that I have not found sufficient convincing reason to stick to my guns and vote for no violation. I was originally of the opinion that this was a borderline case in which the circumstances ultimately tipped the scales towards the respondent. I am still of the opinion that this is a borderline case, even after hearing the views of the other members of the Grand Chamber, and I even ask myself whether this case really raises ‘a serious question affecting the interpretation or application of the Convention … or a serious issue of general importance’ (Article 43 § 2 of the Convention). The fact that the present judgment contains several useful summing-ups of general applicable principles does not change that view. Be that as it may, I am now prepared to cross the room and join my colleagues in finding that there has been a violation of Article 10 … ‘What would your answer [concerning the proportionality test demanded of the judge in this case] have been if a similar case, with a comparable show of force by the police and the prosecution service, had been brought before us from one of the new democracies?’ is a question which I have been asked by a colleague from one of those countries. ‘Would you still have allowed yourself to be satisfied by the involvement, at the eleventh hour, of a judge who has no legal competence in the matter?’ A remark of similar purport was made in the dissenting opinion appended to the Chamber judgment: ‘In finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe, some of whose members may, at times, be tempted to display a similar “regrettable lack of moderation”’. That was ultimately the push I needed to be persuaded to 150 Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (ECtHR, 14 September 2010). 151 See also Chapter 5, IIIB.

International Relations of the Highest Courts 111 cross the line and espouse an opinion opposite to that which I held earlier. I am bound to admit that the Grand Chamber’s judgment provides clear guidance for the legislation needed and the way in which issues like these should be addressed in future.152

Hints of the influence of individual judges in the interplay between national and supranational courts can be discerned in a small number of cases. An example concerns the supposed influence of the French member of the Conseil d’Etat, Yves Galmot, on the Conseil’s judgment in the Nicolo case.153 This landmark decision, which concerned the supremacy of treaties over national law, came about only one year after Galmot’s return from a six-year appointment at the CJEU.154 Another example concerns the influence which the Dutch judge AM Donner might have had as a member of the judicial panel in the CJEU case of Van Gend en Loos.155 Judge Donner himself later wrote about this case: The Dutch realise too little which important role their national law has played in this crucial case. The question whether also the provisions of the treaty itself could be ‘directly applicable’, in that sharp form, could come up only in the brain of a Dutch judge.156

However, disagreement exists concerning the exact influence of Judge Donner on the outcome of this case. Freek Bruinsma has suggested that Donner dictated the outcome of Van Gend en Loos.157 This point of view has been contradicted by Monica Claes, who has presented information which suggests that Judge Donner was in the minority in this case, and that he only accepted the doctrine of direct effect in the CJEU’s Lütticke judgment in 1966.158 Finally, the interviews with judges yielded an example of personal experience with judicial decision-making in an international court. An interviewed French judge, who was a member of an international court, observed that

152 Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (ECtHR, 14 September 2010), concurring opinion of Judge Myjer. 153 See Chapter 5, IA. 154 J Plötner, ‘Report on France’ in AM Slaughter, A Stone Sweet and JHH Weiler (eds), The European Court and National Courts: Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford, Hart Publishing, 1998) 68–69; M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) 262. 155 F Bruinsma, ‘Kamervoorzitters en hun jurisprudentie’ (2010) 60 Ars Aequi 652; M Claes, ‘Nawoord bij “Kamervoorzitters en hun jurisprudentie”’ (2010) 60 Ars Aequi 655. Case 26-62 Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 00003. 156 AM Donner, ‘Inleiding’ (1980) 42 Rechtsgeleerd Magazijn Themis 354, 359 (translation EM); Bruinsma, ‘Kamervoorzitters’ (n 155) 653. See further Chapter 5, IA. 157 Bruinsma, ‘Kamervoorzitters’ (n 155) 653. 158 Claes, ‘Nawoord’ (n 155) 655, referring to interviews with Pierre Pescatore, one of the first judges of the CJEU, and to A Vauchez, ‘The Transnational Politics of Judicialization: Van Gend en Loos and the Making of EU Polity’ (2010) 16 European Law Journal 1, 12.

112 Incorporating the Transnational his experience in this court was very different from his previous experience as a judge in France. The law in the international court was made by diplomats and therefore is very different from the French Codes. The international court’s proceedings have been borrowed from the common law model. In discovering this model, the judge was particularly surprised by the slowness of its proceedings, with hearings which can go on for days and judgments which are handed down only after four or five years. The judge felt that he had learnt to improvise. Furthermore, the judge pointed out that the judicial assistants at the international court have a different background when compared with their counterparts in the French highest courts. The young people working at the court have all had international experiences, education and training. The judge compared their eagerness to engage in these experiences with the cartoon hero Obelix, who is known for his voracious appetite.159 The judge further observed to have learnt that the international world has a different rhythm, which is the result of the variety in speed and hours which characterise the training of judges in different countries. Finally, language poses a problem at the international level. The judge felt that his contributions on nuances of style are less frequent in judgments written in English than in judgments written in French.

D. Conclusion The overview of the experiences of judges in each of the courts examined for this research makes clear that the judges appreciate the possibilities for exchange with their foreign colleagues. Nonetheless, most judges feel that transnational judicial exchanges only in a limited way yield tangible results concerning the topics discussed. Bilateral visits and meetings of judicial networks provide a setting for deliberations, rather than mere conversation.160 The discussed issues can concern substantive law, procedural matters or court organisation. At the same time, the judges feel that solutions developed in one legal system often cannot be transplanted to another system. Moreover, the possibility of exchanges is limited by time constraints and the personal willingness of individual judges to engage in these exchanges. Concerning the partners involved in judicial exchanges, choices are based on legal tradition, and therewith on historical connections, and on language. The most varied relations in the examined courts have been developed by the judges in Canada, who are familiar with two legal traditions and two languages, and by the Dutch judges, who work in a legal system 159

See en.wikipedia.org/wiki/Obelix. LB Tremblay, ‘The Legitimacy of Judicial Review: The Limits of Dialogue between Courts and Legislatures’ (2005) 3 International Journal of Constitutional Law 617. See also Claes and De Visser, ‘Are You Networked Yet?’ (n 60) 103. 160

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with significant German and French influences and who master several languages. Interestingly, judges in Canada and the United States show a remarkable interest in the legal regimes of the European Union and the ECHR. This interest is based on points of reference which for the Canadian judges exist in the ECHR’s treatment of human rights and for the US judges in the European Union’s treatment of federalism issues. Concerning the perceived usefulness of the exchanges, some differences can be observed between the personal views of the interviewed judges. In particular, it seems that judges who participate more often and more actively in judicial exchanges value these exchanges more than judges who are less involved in these exchanges. First of all, knowledge and experience play important roles in this respect. Judges with knowledge of international and comparative law or with prior professional experiences abroad appear to be more open to participate in judicial exchanges because they have previously experienced to what extent lessons can be learnt from foreign law and practice. For judges who do not have this prior knowledge or experience, it is much more difficult to estimate to what extent their involvement in judicial exchanges could be useful. Secondly, character traits and personal background play a role. The interest of certain judges for foreign law and their engagement in foreign exchanges have developed already during their studies or in their professional lives before their appointment in the highest court of their country. Their interest in transnational exchanges seems to be related to diverse factors, including curiosity about or a personal confrontation with foreign cultures, and the ability and provided opportunities to learn foreign languages. At a more fundamental level, the value attributed to foreign exchanges and to the study of foreign law depends on the personal conviction of a judge concerning the possibility or impossibility of a convergence of legal regimes across national borders. Judges who believe that such a convergence can occur seem to be more willing to look for lessons from foreign law than their more sceptical colleagues.

III. WORKING METHODS IN A GLOBALISED WORLD

In the previous section, we considered the development of the international relations of highest national courts in the globalised legal context. Certain effects of globalisation can also be identified at the level of the internal organisation of the courts. The research on and discussion about foreign legal materials in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands appears to have become institutionalised to some degree. Moreover, some of these courts have copied specific working methods from their counterparts in other jurisdictions. These developments will be discussed next. We will address the internal research

114 Incorporating the Transnational of foreign law in the highest courts, the role of external actors involved in the decision-making of these courts, and the deliberations and style of judgments of the courts.

A. Internal Research of International and Comparative Law Judges in all of the examined courts mentioned that research concerning international and foreign law is sometimes conducted for the benefit of the decision-making in specific cases. This kind of research is done by the judges themselves or by judicial assistants. The personal interests and affinities of the judges concerning comparative law and specific foreign legal systems seem to play an important role in this research. The interviews yielded the following particularities with regard to each of the courts. (i) UK Supreme Court The procedures of the UK Supreme Court can be found in the Court’s Rules,161 as well as in the Practice Directions issued by the President of the Court.162 Concerning the use of foreign law, the Practice Direction (Citation of Authorities), issued by the Lord Chief Justice for all courts in England and Wales, provides that: Cases decided in other jurisdictions can, if properly used, be a valuable source of law in this jurisdiction. At the same time, however, such authority should not be cited without proper consideration of whether it does indeed add to the existing body of law.163

In light of this perceived usefulness of foreign law, the judges of the UK Supreme Court sometimes conduct research on comparative legal sources or ask a judicial assistant to look for useful sources. Some judges put more time and effort into this kind of research than others. With regard to the comparison with non-common law jurisdictions, such as France or Germany, the judges in general conduct research by themselves, that is, without the help of judicial assistants. Therefore, the selection of this kind of foreign sources seems to be very much dependent on the personal background of the judges, in particular concerning the languages they master and the data they have access to. Indeed, some of the interviewed judges observed that language skills can be an obstacle for doing comparative legal research. Only a limited number of the British judges indicated that

161 Supreme Court Rules 2009 (UK), available at www.supremecourt.gov.uk/docs/uksc_ rules_2009.pdf. 162 See www.supremecourt.gov.uk/procedures/practice-directions.html. 163 [2001] 1 WLR 1001.

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they feel confident enough to consult materials in French or German. These judges had acquired knowledge of the language and legal system of other countries in their earlier lives and careers.164 (ii) Supreme Court of Canada The judges of the Supreme Court of Canada sometimes conduct their own comparative legal research. A former judge of the Supreme Court remembered to have done specific research in a case concerning the bilingual position in the Canadian Constitution and the right to education.165 This judge felt that the development of the Internet has been of significant influence for the research of foreign law, as online databases enable courts to gain access to foreign case law and other useful resources more easily.166 Comparative legal research is also conducted by judicial assistants. A former judge of the Supreme Court of Canada indicated that he often asked his law clerks to do research on foreign judgments, including the case law of the ECtHR. A current judge estimated asking law clerks to do research in approximately one-third of the cases brought before the Court. Another judge estimated doing this in about half of the cases. The frequency of citations to foreign law appears to be lower than these estimations. Quantitative research concerning the Court, giving details about the citations to foreign precedent between 1982 and 2010, shows that a citation rate of 50 per cent occurred only in 2007 and that in 11 of the examined years the citation rate was below 30 per cent.167 Therefore, either not all comparative legal research seems to have yielded helpful arguments to be discussed in the Court’s decisions, or not all of the comparative research conducted by the judges and their assistants is discussed in the reasoning of the Court’s judgments.168 As concerns language, sources used by the Canadian judges are most often in English or in French. Most judges in the Supreme Court of Canada would have trouble in consulting, for example, Romano-German legal sources. One judge mentioned sometimes looking at decisions of the German Constitutional Court which have been translated into English.

164

See further Chapter 5, IIIB. See, eg Solski (Tutor of) v Québec (Attorney General) [2005] 1 SCR 201, and Gosselin (Tutor of) v Québec (Attorney General) [2005] 1 SCR 238. 166 Bastarache ‘The Globalisation of the Law’ (n 63) 54. 167 G Gentili, ‘Canada: Protecting Rights in a “Worldwide Rights Culture”: An Empirical Study of the Use of Foreign Precedents by the Supreme Court of Canada (1982–2010)’ in Groppi and Ponthoreau, The Use of Foreign Precedents (n 69). See also B Roy, ‘An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation’ (2004) 62 University of Toronto Faculty Law Review 99, 123–24. 168 See further Chapter 5, IIIA. 165

116 Incorporating the Transnational (iii) US Supreme Court Sometimes US Supreme Court judges carry out extra research of international and foreign legal materials by themselves. An example mentioned by an interviewed judge concerned the case of Medellin v Texas.169 The legal question at issue was whether interpretations of international treaty law in ICJ judgments could be considered to have automatic direct effect in the United States.170 The judge indicated to have done six months of research on questions of international law related to this case. The judge was assisted in this research by his four law clerks and by the Court’s library staff. The judge considered that academic work was helpful in this research, and that the most helpful contribution from international law came from Carlos Manuel Vázquez, a professor at Georgetown University Law Center.171 However, no mention of this academic source was made in the judgment. Academic writings have been consulted for information on other occasions as well. Justice Ginsburg, in a public lecture, has remarked that with regard to the interpretation of the Warsaw Convention and the Hague Convention, the US Supreme Court has had recourse to the writings of Lord Scarman, the first Chairman of the Law Commission of England and Wales.172 An interviewed judge mentioned the work of the late Professor Antonio Cassese, which is considered helpful for the assessment of arguments based on international law.173 Each Supreme Court judge is assisted by law clerks, hired for one judicial year. The way in which the judges work and the way in which they interact with their law clerks varies greatly between judges. A law clerk who at the time of the interview worked with one of the judges indicated that this judge would work with one law clerk on each case. An important aspect of the interaction between this judge and the law clerks consisted in the judge’s rewriting or editing of drafts prepared by the law clerks.174 (iv) French Highest Courts At the French Cour de cassation, an important role in the research for cases is played by the Advocate-General. This advisor to the Court175 will plead

169

Medellin v Texas, 552 US 491 (2008). See further Chapter 5, IIA. 171 This source, most likely, was CM Vázquez, ‘Judicial Enforcement of Treaties: SelfExecution and Related Doctrines’ (2006) 100 American Society of International Law Proceedings 439. 172 Ginsburg, ‘Judicial Stimulation of Legislative Change’ (n 139) 2. 173 A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005). 174 See further A Ward and DL Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York, New York University Press, 2006). 175 See Chapter 3, IIB. 170

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in cases in which oral hearings take place. A similar role is played by the commissaire du gouvernement at the Conseil d’Etat. In this context, a judgment of the ECtHR has had an important impact on the working methods of the Cour de cassation, as well as the Conseil d’Etat. In Kress v France, the role of the commissaire du gouvernement, who acts as an independent judicial advisor to the trial bench in Conseil d’Etat cases, was put in question.176 This advisory function is comparable to the position held by the Advocate-General at the Cour de cassation. The Strasbourg Court considered that the commissaire du gouvernement’s participation in judicial deliberations gave him an additional opportunity to express himself in favour of one of the parties to the case. This jeopardised the administrative court’s appearance of independence and hence was considered a violation of Article 6(1) ECHR.177 Following the Kress judgment, institutional reforms were introduced at the Conseil d’Etat and at the Cour de cassation, excluding the court’s advisors from the judicial deliberations.178 In the Conseil d’Etat, a special unit, the Cellule de droit comparé, has been established to conduct comparative legal research in order to assist both the consultative and judicial sections of the Council. In this unit, two ‘assistants juridiques en droit comparé’ (judicial assistants for comparative legal research) are employed. Most of the conducted research is for the benefit of the consultative section, which prepares advices to the legislator concerning pending legislative Bills. The interviewed judges are aware of the development of online databases of foreign case law.179 A judge pointed out that, beside these databases, information can also be obtained through a specific request for information sent to a foreign court, asking how a specific case was dealt with. In the judge’s experience, many courts have a scientific department which may be contacted for this purpose. (v) Dutch Highest Courts In the Hoge Raad, slight differences exist between the ways in which each of the Court’s Chambers has organised the judicial deliberations.180 A common feature is that case files are studied by all judges on the panel which was assigned to a case. When preparing the deliberations, the judges study in particular the opinion of the Advocate-General and the additional 176

Kress v France, [2001] VI ECHR (ECtHR, 7 June 2001). Ibid. 178 Concerning these reforms, see in more detail Lasser, Judicial Transformations (n 40). 179 See above, IIA. 180 A detailed description is given by the Hammerstein Committee, Improving Cassation Procedure (The Hague, February 2008), 20 ff, available at www.rechtspraak.nl/Organisatie/ Hoge-Raad/OverDeHogeRaad/publicaties/Pages/default.aspx. 177

118 Incorporating the Transnational materials put forward by this advisor to the Court. In this sense, the working methods resemble those of the Cour de cassastion in France.181 Selected foreign legal materials can form part of the Advocate-General’s opinion and in this way be included in the judicial process of discovery. Indeed, the interviewed judges in the Hoge Raad confirmed that they get most of their information through the opinion of the Advocate-General. Besides the information provided in this way, the judges depend almost entirely on the research done by their assistants and on their own research to find out about foreign legal materials which might help to decide a specific case. As in the other examined courts, some judges are more inclined than others to carry out extra research of foreign legal materials. At the Raad van State, in some cases in which EU law is concerned contact is sought with the European Commission in order to obtain more clarity concerning policies developed by the Commission. A judge pointed out that a special procedure exists for this purpose, which makes it possible to avoid the longer route of the preliminary reference procedure with the CJEU. The judge mentioned the Eelde case, concerning state aid, as an example of a case in which this special procedure has been used.182 An interviewed judge of the Raad van State pointed out that the time which can be spent on research for individual cases is limited. The Council works with delays for judgment which are strictly upheld. The normal delay is one year, and for spatial planning cases a judgment has to be given within six months. Interestingly, this Dutch administrative judge observed that legal comparison is considered by the members of the Raad van State to be more useful for its task as an advisor to the legislator than for the judicial decision-making in administrative cases. For this reason, most of the support for comparative research is concentrated in the Council’s consultative section. In this respect, the Raad van State resembles the French Conseil d’Etat.183 It should be noted that the request for comparative legal research is not an established practice in the consultative section either. This has to do with time constraints. The deadlines for delivering an advice to the legislator are short, usually amounting to one, two or three months for the preparation of an advice. Therefore, comparative legal research will only be conducted in a limited number of instances. The support staff of the Raad van State is organised in two internal committees: the European Law Commission, chaired by Kamiel Mortelmans, and the Constitutional Law Commission, chaired by Pieter van Dijk.

181 Mitchel Lasser has shown how significant this kind of ‘hidden’ dialogue is for the judicial deliberations. See M de S-O-l’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004). 182 Luchthaven Eelde ABRvS 11 June 2008, AB 2008, 371. 183 See Chapter 3, IIB.

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Questions can be sent to these committees by the consultative and judicial sections of the Council. The Constitutional Law Commission assists the Raad van State in mapping the international context with regard to specific legal issues. Furthermore, a liaison officer at the Raad van State explained that her task is to prepare reports to assist the solution of concrete matters in the context of the Council’s consultative and judicial functions, as well as to conduct academic research. As a liaison officer, she is affiliated to the Secretariat of the Council, which supports both the consultative and judicial sections.184 The reports prepared by the support staff of the Raad van State are not accessible to the general public. However, the interviewed liaison officer mentioned that the Constitutional Law Commission envisages publishing an annual report. She further specified that 25 requests for research were sent by the Raad van State to the Constitutional Law Commission in 2010. Of these requests, 13 came from the Council’s judicial section. In three of the advices issued in 2010, all concerning legislative advice, a connection was made with the Venice Commission. In the interviews, a judge of the Raad van State mentioned conducting academic research besides the tasks in the Council. This comparative research also addresses matters which play a role in the decision-making of the Council. It discusses in particular questions concerning the system of the administrative law and it concerns primarily a comparison with the case law of the European courts. When asked, the judge observed that this research provides a broader frame of reference for the decision-making in the Raad van State. In sum, research of foreign legal materials takes place in all of the examined courts. Sometimes judges will engage in this research by themselves. However, most often they are assisted by the research staff of their court. In the courts in civil law systems, the research of relevant legal sources is a task of the judges, who receive advice from an Advocate-General, a commissaire du gouvernement, or an internal research committee. In the common law systems, the research of foreign law in the courts is more limited. As we shall see, this relates to the responsibility of external actors in the research of relevant legal sources for the judgment of cases by the AngloSaxon courts.185 Practical constraints to the research of foreign law in all of the highest courts concern: (1) the availability of research assistance; (2) the accessibility of sources, in terms of online availability and in terms of language; and (3) the delays for judgment.

184 185

Ibid. See below, IIIB.

120 Incorporating the Transnational B. Role of Counsel, Amici Curiae and Interveners Information about international and comparative law can also be introduced in the court proceedings from the outside. The interviewed judges made observations about the role of the parties and their counsel, amici curiae and interveners in the proceedings before the highest courts and about the information on foreign law obtained through these actors. (i) UK Supreme Court The judges of the UK Supreme Court feel that counsel should bring forward all legal materials which are relevant for deciding the case, including foreign judgments and academic resources concerning foreign law. This view fits the British adversarial system for court proceedings, in which the parties present their case and all relevant arguments to the court.186 Relevant materials can also be brought to the attention of the UK Supreme Court by third parties. Amici curiae can provide information which can assist the decision-making in a particular case. Traditionally, these ‘friends of the court’ did not have an interest in the decision of the case itself. In the British system this is still the role they have, differently from the more partisan aspect introduced in the amicus role in the United States. Amici curiae, in the British system, provide information and arguments in specific cases in which their advice is commissioned. They are appointed by the Attorney General at the request of the court.187 Concerning third party interveners, who do have an interest in a specific case, Practice Direction 8 (Miscellaneous Matters) of the UK Supreme Court provides that permission to intervene can be allowed under certain conditions, both regarding an application for permission to appeal and regarding an appeal.188 Although not occurring as often as in the United States or Canada, since the 1970s the number of interventions in Supreme Court (and formerly House of Lords) cases in the United Kingdom has increased. Such interventions have been made, for example, by the human rights organisation Justice and by the United Synagogue in the Jewish Free School case.189 Interventions made by Justice often include an analysis of international and

186 Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London, Lord Chancellor’s Department, 1995). 187 Justice, To Assist the Court: Third Party Interventions in the UK (London, 26 October 2009), 7–8, available at www.justice.org.uk. 188 UKSC Practice Direction 8, para 8.8.1. 189 R Smith, ‘Why Third-Party Interventions in the Judicial Process Benefit Democracy’, Law Society Gazette, 12 November 2009, available at www.lawgazette.co.uk/opinion/columnists/ third-party-interventions-judicial-process-are-good-democracy. See also Justice, To Assist the Court (n 187). The Jewish Free School case is discussed in Chapter 5, IIB.

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comparative materials, which is considered to be valuable in addition to the materials already available to the Court.190 (ii) Supreme Court of Canada In all cases before the Supreme Court of Canada, the parties have the right to raise constitutional questions.191 The legal question to be answered by the Court is framed by the Chief Justice. In a published interview, the recently retired Justice Ian Binnie has confirmed the importance of the persuasive powers of lawyers and individual judges in directing the focus of the case: It is the art of the advocate to frame the question in a way that suits his or her interest … The effective judge is the judge who frames the question in a way the other judges accept as a legitimate characterization of what we have to decide.192

Several judges observed that counsel sometimes also introduces foreign sources in the procedure. A former judge mentioned that lawyers bring forward both primary sources, such as foreign case law, and secondary sources, such as literature on foreign law and foreign case law. However, another judge pointed out that counsel usually does not do this kind of research, as the focus of the lawyers is on the case of the parties. Concerning the use that is made of foreign law by counsel, a judge was of the opinion that sometimes international and foreign legal sources are misused. According to this judge, this occurs, for example, when counsel does not check the relevance of a foreign reference for the case at hand or the binding nature of the reference. Misuse also occurs when counsel uses foreign law merely as a rhetorical device. Another judge stressed the significance of the input of counsel, but pointed out that this input is sometimes of insufficient quality. The judge recalled a case in which he had asked counsel for the appellant what the risk of ‘torture’ meant in this specific case. Counsel confirmed that it was using the definition given in the UN Convention Against Torture. However, according to the judge, counsel could not reproduce this definition during the hearing of the appeal and did not know how to classify a number of examples based on Guantanamo cases. This example seems to corroborate the observation made by Justice Binnie that the Supreme Court judges ‘suffer from the absence of a specialised Supreme Court bar’.193

190 191 192 193

Smith, ‘Third-Party Interventions’ (n 189). Rules of the Supreme Court of Canada 2002, r 60. Makin, ‘Justice Ian Binnie’s exit interview’ (n 128). Ibid.

122 Incorporating the Transnational The judges mentioned that interveners, such as non-governmental organisations, sometimes bring foreign case law to the attention of the Supreme Court as well. Their input is appreciated by the Supreme Court, as interveners often are represented by specialised counsel.194 This is the case, for example, in equality cases. Amici curiae, who fulfil a similar function in Canada as in the United Kingdom, can be requested by the Supreme Court to provide information and arguments which could contribute to the Court’s deliberations.195 (iii) US Supreme Court In the United States, references to foreign law are mostly put forward in the briefs filed in individual cases. These include, first of all, the briefs submitted by counsel for the parties. Of particular importance, furthermore, are the so-called amicus curiae briefs, which can be filed with the permission of the Court by interested third parties, such as non-governmental organisations or law professors. Sometimes, surprising interventions are made through this mechanism. An example mentioned during the interviews concerned an amicus brief filed by the European Union in a case concerning the transmitting of documents between companies in different countries.196 A brief prepared by several European countries (namely, the United Kingdom, Ireland and the Netherlands) was submitted in an antitrust case concerning a cartel in the Netherlands. The US Supreme Court, in this case, had to decide whether a suit should be brought in the United States or in Europe.197 Finally, briefs prepared by many different foreign states (including Australia, the United Kingdom and France) were filed in a securities-law case initiated by an Australian citizen.198 In a public lecture, already in 2003, Justice Stephen Breyer emphasised the importance of the contribution of lawyers to the research on international and comparative law. He observed about this: Neither I nor my law clerks can easily find relevant comparative material on our own. The lawyers must do the basic work, finding, analysing, and referring us to, that material. I know there is a chicken and egg problem. The lawyers will do so only if they believe the courts are receptive. By now, however, it should be clear that the chicken has broken out of the egg. The demand is there.199

194

Ibid. Rules of the Supreme Court of Canada 2002, r 92. 196 Intel Corp v Advanced Micro Devices Inc, 542 US 241 (2004). 197 F Hoffman-LaRoche Ltd v Empagran SA, 542 US 155 (2004). See also W van Reenen, ‘The Submission of Amicus Curiae Briefs to United States Courts’ in N Blokker et al, Essays in Honour of Johan G Lammers (Leiden, Nijhoff, 2006). 198 Morrison v National Australia Bank Ltd, 130 US 2869 (2010). 199 Breyer, ‘The Supreme Court and the New International Law’ (n 136). 195

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(iv) French Highest Courts Compared to the Anglo-Saxon legal systems, the role of counsel in the research of foreign legal materials is much more limited in France. A former judge of the Cour de cassation considered that the role of comparative law can be dangerous if foreign law is manipulated by parties to serve their cause. Therefore, the Cour de cassation has developed a practice of requesting research from external labs.200 The parties receive a copy of the reporting judge’s report for their case, which allows them to prepare adequately for the oral arguments. This ‘rapport objectif’ (objective report) contains a detailed description of the legal and analytical framework used for the deciding of the case.201 Amicus curiae briefs, originating in the British common law system, have obtained a modest role in French judicial proceedings.202 Research on international and foreign law can form part of the information brought to the courts through such briefs. An example can be found in two cases decided by the Cour de cassation in which the question occurred whether the rules on ‘involuntary homicide’ could be applied to a child not yet born.203 (v) Dutch Highest Courts The judges at the Hoge Raad indicated that the citation of foreign judgments or academic literature by counsel is very rare. By contrast, binding legal sources originating at the international level, in particular EU law and the ECHR, are frequently used in the arguments of counsel. Still, some examples of the citation of case law of foreign courts were found in the analysis of the case law of the Dutch highest courts for this research, for example, in the case of Mothers of Srebrenica Citizens’ Association v Minister of Defence.204 It is likely that the specialisation of counsel has an influence on the inclusion of arguments from foreign law in the arguments of the parties. In highprofile cases, such as the one just mentioned, often lawyers specialised in a particular area of the law are hired. In this light, the recently introduced quality requirements to be met by lawyers in civil cassation cases constitute an interesting development.205 These requirements have been determined by 200

See Chapter 5, IIB. Lasser, Judicial Deliberations (n 181) 96. 202 R Encinas de Munagorri, ‘L’ouverture de la Cour de cassation aux amici curiae’ (2005) Revue trimestrielle de droit civil 91; G Canivet, ‘L’amicus curiae en France et aux Etats-Unis’ (2005) 49 Revue de jurisprudence commerciale 99, 102. 203 See Chapter 5, IIB. 204 Mothers of Srebrenica Citizens’ Association v Minister of Defence ABRvS 3 March 2010, LJN BL6245. See Chapter 5. 205 Nederlandse Orde van Advocaten (College van Afgevaardigden), Verordening vakbekwaamheidseisen civiele cassatieadvocatuur, Staatscourant 2011, 20846. 201

124 Incorporating the Transnational the Dutch Bar Association (Nederlandse Orde van Advocaten) and form a condition included in the new legal rules concerning the reinforcement of the cassation procedure, which entered into force on 1 July 2012.206 The specialised group of lawyers allowed to bring civil cases to the Hoge Raad might be persuaded to present more international and comparative legal materials to the Court if they felt that this would be appreciated by the judges. Furthermore, time and money also play a role in the research done by counsel. In high-profile cases generally more time and money is available for the preparation of the case by counsel. This could also create more opportunities for the study of foreign law for the benefit of judicial decision-making. As in France, amici curiae or interveners do not form part of the Dutch civil law tradition with regard to judicial proceedings. However, academic authors have suggested that the possibility to submit amicus curiae briefs to the Hoge Raad could lead to an improvement of the quality of the decisionmaking in cassation cases and that this possibility could contribute to the acceptance of judgments by the legal community and the society.207

C. Deliberations The form of judicial deliberations in the highest courts was discussed with the judges in order to obtain a better understanding of the use that is made of international and comparative legal materials in the process of discovery in individual cases. Several judges felt that a change in the organisation of the working methods in this regard could have an impact on the discussion of the relevant legal materials, including international and comparative legal sources. (i) UK Supreme Court Interestingly, the move to the UK Supreme Court was a reason for the British judges to rethink their way of working. The institutional change brought about by the move of the Law Lords out of Parliament freed them from the obligation to respect parliamentary procedures. This change has provided the judges with an opportunity to experiment with the way in

206

See Chapter 3, IIC. FF Langemeijer, JE van de Bunt and S Sierksma, ‘Het raadplegen van externe deskundigen in burgerlijke zaken door de Hoge Raad of het parket’ (2009) Trema 130. See also MA Loth, ‘Beslissen te beslissen, hoe de Hoge Raad zijn agenda bepaalt’ in AG Castermans et al (eds), Het zwijgen van de Hoge Raad (Deventer, Kluwer, 2009) 16. 207

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which judgments are written, introducing more collaborative efforts.208 During the interviews, several judges mentioned that the new Supreme Court building, by itself, invites a more collegiate approach. The offices of the judges are now closer to each other and it is easy for a judge to walk in and discuss a case with a colleague. Such discussions might concern the relevance and content of specific foreign legal materials. In a public speech concerning the judgment writing of the Supreme Court, Justice Lady Brenda Hale pointed out that collaboration between judges on the drafting of opinions to some extent occurred, too, in the Appellate Committee of the House of Lords.209 However, she made the following observation: No doubt traditions of collaboration wax and wane over time according to the personalities and preferences of the Justices involved, but I was not alone in finding when I first arrived that colleagues did not really expect one to comment on the draft in depth and in detail in the way in which, for example, Law Commissioners were expected to comment on draft consultation papers and reports. But we are certainly doing more of that now.210

The fact that in the new Supreme Court more cases are heard by a larger panel of judges might also have an influence on the decision-making of the Court as a whole. A court watcher has advanced that the number of dissenting opinions could be influenced by the size of the judicial panel. If the composition of the Court is more consistent and draft judgments are circulated amongst a larger number of judges, this could lead either to more consensus or to more polarisation between the judges.211 (ii) Supreme Court of Canada Cases in the Supreme Court of Canada are discussed by all nine judges together after oral hearings. Following the discussion of a case, a judge is assigned to draft the written judgment. After a draft has been circulated, the judges exchange comments through written memos. Former Justice Binnie, in a published interview, observed that this practice has a specific purpose: [T]here is an effort both institutionally and personally to avoid cabals. That is why there is so much memo writing. We don’t want judges going from room to room, pigeonholing colleagues and then presenting other colleagues with: ‘Well, I’ve already got four judges to agree with me and that’s the outcome of the case.’212 208

See below, IIID. B Hale, ‘Judgment Writing in the Supreme Court’ (Supreme Court First Anniversary Seminar, London, 30 October 2010), available at www.supremecourt.gov.uk/docs/ speech_100930.pdf. 210 Ibid. 211 C Hanretty, ‘Dissenting Opinions in the UKSC’, UK Supreme Court Blog, 19 August 2010, available at ukscblog.com/dissenting-opinons-in-the-uksc. 212 Makin, ‘Justice Ian Binnie’s exit interview’ (n 128). 209

126 Incorporating the Transnational The practice of deliberations in the Supreme Court of Canada thus is aimed at the avoiding of the emergence of voting blocs. Justice Binnie has indicated the disadvantages of such blocs, which can be seen in the United States. There, lawyers are seen to focus their argumentation on the judge who they consider to be the ‘swing judge’. The Canadian practice, by contrast, is meant to encourage lawyers to address all nine judges of the Supreme Court.213 Justice Binnie further explained how the procedure of deliberations has changed under the presidency of the current Chief Justice Beverley McLachlin: Instead of starting off … pointing at the most recent appointee and demanding of him, we have a general discussion of the different issues and what perspectives different judges have on what the case is all about. The important issues and a preliminary view of how they should be decided … [I]t’s better to have this ventilation of perspectives and then go around the table with the most recent appointee going first.214

According to the interviewed Canadian judges, a comparative legal analysis forms part of the judicial deliberations increasingly often. A former Supreme Court judge thought that the consultation of foreign legal sources will continue in the future as a result of the increased role of uniform legal instruments. (iii) US Supreme Court The deliberations in the US Supreme Court are organised in a similar way as in the Supreme Court of Canada. After the hearing of a case, the judges will convene to discuss the issues of the case and a vote will take place. Since this discussion of the case tends to be brief and focuses on the outcome, foreign legal materials will most likely not be discussed at this stage. On the basis of the vote on the case, a judge from the majority will be assigned the task of writing the judgment of the Court. The draft judgment will be circulated and commented on by the other judges. During this time, the judges in the minority can prepare a concurring or dissenting opinion. Research has revealed that the procedure of circulation can be a process of negotiations and compromises, influenced by the strategies of the individual judges.215 References to foreign law might be included in the draft judgment or in the draft opinions of the concurring or dissenting judges. The judges can use an individual opinion to discuss the relevance of specific foreign 213

Ibid. Ibid. 215 B Woodward and S Armstrong, The Brethren: Inside the Supreme Court (New York, Simon & Schuster, 2005, first published 1979); J Toobin, The Nine: Inside the Secret World of the Supreme Court (New York, Doubleday, 2007). 214

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legal sources for the decision of the case, or the relevance of foreign law as such for the deciding of cases in the US legal system.216 (iv) French Highest Courts The interviewed French judges, like their counterparts in the described common law jurisdictions, thought that the way in which the deliberations are organised can have an influence on the content of the debate. The principle of collegiality is predominant in the deliberations of the French highest courts. Concerning the Conseil constitutionnel, it has been explained that, in this way, a platform is provided for decisions to result from the largest possible agreement.217 An interviewed judge further explained the form of the deliberations in the Criminal Chamber of the Cour de cassation. During these deliberations, first the reporting judge will speak. Then, the debate is continued by the senior judge and the other judges on the basis of seniority, starting with the judge who has been on the Court longest and finishing with the most recently appointed judge. An interviewed judge recalled that some senior judges would sometimes stop halfway down the line, especially in case of a larger panel judging the case. This judge considered, however, that it is worthwhile to let all judges speak during the deliberations. It might happen that the last judge brings up a point which makes the presiding judge reconsider his or her decision and start the deliberations all over again. At the Cour de cassation, it is considered valuable that judges with different backgrounds participate in the judicial deliberations. According to an interviewed judge, in the process of discovery at the Cour de cassation new ideas and approaches are sometimes introduced by the conseillers référendaires, judges from the lower courts who are transferred for a certain period to the Cour de cassation.218 These judges are included in the judicial panel for cases in which they are the reporting judge, and they can be consulted in other cases. Furthermore, some judges at the Cour de cassation have worked in the CJEU in Luxembourg before or have been transferred abroad for some time, for example to Central Europe. These judges are considered to contribute to the deliberations by offering a clearer view on specific issues, and in this way they enrich these deliberations. The interviewed judges of the Cour de cassation, the Conseil d’Etat and the Conseil constitutionnel stressed that comparative law only plays a role in the most important cases judged by the French highest courts.219

216 217 218 219

See below, IIID, and Chapter 5, IB. Lancelot, ‘Où il est question du bonheur’ (n 100). See Chapter 3, IIB. See Chapter 5, IIB.

128 Incorporating the Transnational (v) Dutch Highest Courts On the basis of the principle of the secrecy of deliberations, the Dutch highest courts work with collective judgments. The judicial division of the Council of State decides cases in panels which consist of one, three or five judges. In a three-judge or five-judge chamber, the president of the chamber asks each member of the panel to give his or her opinion of the case. The president will speak last about his or her own opinion.220 Slight differences exist between the ways in which each of the Chambers of the Hoge Raad has organised the judicial deliberations.221 A common feature is that case files are studied by all judges on the panel which was assigned to the case. When preparing the deliberations, the judges study in particular the opinion of the Advocate-General and the additional materials put forward by him or her. In the Civil Law and Criminal Law Chambers, cases judged by a three-judge panel are discussed by the judges on this panel only, and are often disposed of under the shortened procedure of Article 81 of the Judicial Organisation Act.222 In the Tax Law Chamber, three-judge cases are discussed by all judges of a department. The departments consisted of eight and six judges respectively at the time of the interviews. The judges of the department read the drafts and notes of the three judges on the panel, as well as the most important documents of the case. They can contribute to the discussion and, according to one of the interviewed judges, this happens regularly. In five-judge cases, the case is discussed during the deliberations of the competent full Chamber. Much weight is attached to the internal coordination in the court which is brought about by the participation of all judges of a Chamber in these deliberations. With regard to the Civil Law Chamber, it has been observed that: The presence of the justices who are not part of the panel hearing the case is of great importance in this connection. They become acquainted with the case from the opinion, the draft and the memorandums and follow and are often involved in the discussions. This is the best way of ensuring the internal consistency of the justice system … While it is by no means the case that all justices read all documents in 5-judge cases, this does mean that they can themselves decide on the basis of the draft judgment submitted for discussion whether and, if so, to what extent they will involve themselves in cases they are not hearing. This procedure has been found in practice to be an effective way of safeguarding quality, and there is clearly real merit in reading one another’s drafts in important cases.223

220

Council of State Act 1962 (Netherlands), arts 42–43. A detailed description is given by the Hammerstein Committee, Improving Cassation Procedure (n 180) 20 ff. 222 Ibid 20, 26–27 and 34. 223 Ibid 20–21. 221

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For each case, one judge is assigned to write a draft judgment. This draft is sent back and forth between the judges on the panel for the case until they agree on a final version.224

D. Published Judgments Finally, each of the examined highest courts has a specific style of reasoning of its judgments. A distinction exists between the common law tradition, in which judges can write separate opinions, and the civil law tradition, in which the courts issue a single judgment for each case. However, the study of the practices of the examined highest courts reveals that this distinction is no longer so clear. Judges in the Anglo-Saxon world can be found to strive for more unity in their courts, while some judges in the civil law systems would welcome the possibility for judges to write dissenting opinions. Moreover, the approaches to the citation of foreign law in the examined highest courts are also shifting. It seems that citations of foreign law can be integrated more easily into the judgments of the Anglo-Saxon courts, although some differences can be identified between the practices of the highest courts in the United Kingdom, Canada and the United States. Yet, a gradual development can be identified in France and the Netherlands towards more openness concerning the sources used in the decision-making of the highest courts. (i) UK Supreme Court By tradition, the highest British judges hand down individual opinions for the judgment of each case. After all, in the House of Lords members speak for themselves and joint speeches of the Law Lords would hence have been odd. The interviewed judges explained that the move of the Law Lords out of Parliament has made it possible to modify this system of separate opinions. Since October 2009, the judges have been experimenting with a system in which one judge writes the lead opinion and the other judges on the panel may choose to concur with this judge, to write a separate opinion, or to write a dissenting opinion.225 A judge explained that the selection of the reporting judge takes place on the basis of several factors, including whether this judge is part of the majority, has a special interest in the case, and is not too busy.

224

Ibid 20 and 27. See, eg In Re Sigma Finance Corp (in administrative receivership) and In Re The Insolvency Act 1986 (Conjoined Appeals) [2009] UKSC 2, [2010] 1 All ER 571. See also Hale, ‘Judgment Writing’ (n 209). 225

130 Incorporating the Transnational By changing its working methods in the described way, the UK Supreme Court aims to create more transparency. Indeed, the judges feel that working with majority opinions leads to more consistency and gives clearer guidance to the lower courts on how to operate in the future. Transparency, also vis-à-vis the general public, is further enhanced because the new way of working is closer to the procedures of the ECtHR. Even so, all of the interviewed British Supreme Court judges gave much importance to the possibility of writing an individual opinion. They feel that this possibility enables them to express thoughts of their own and to produce judgments which are readable by the audience. The individual opinions of the judges are often lengthy and can include the discussion of foreign legal materials and academic writings. One judge indicated that the use of foreign legal materials need not be hampered by the increased use of majority opinions. An individual judge might still choose to write a separate opinion about foreign law if this judge is not satisfied with the majority opinion. (ii) Supreme Court of Canada The Canadian judges strive to hand down unanimous judgments, but individual judges have the possibility to issue a concurring or dissenting opinion. Concerning the relation between majority judgments and concurring or dissenting opinions, Justice Binnie has observed: [T]he whole point of the Supreme Court is you are not dealing with individual judges penning their own thoughts. You are expressing the ideas of nine judges synthesized into one judgment. That is why dissenting opinions are often much more idiosyncratic than majority judgments. … [W]hen you see a judgment ‘by the court’, it will quite often be the result of a process of sandpapering the rough edges, taking out the little flashes of colour and reducing it to vanilla flavour.226

Concurring and dissenting opinions are considered to be useful to clarify to the public that a real debate is taking place amongst the judges.227 These opinions can provide judges with an opportunity to discuss elements of foreign law which they consider relevant for the judgment of a specific case. However, an interviewed Canadian judge observed that he would not be quick to make use of the competence to write a separate opinion for the sole reason of bringing up a point of foreign law. This judge considered that it is more important to reach a majority decision in the case at hand. Interestingly, quantitative research shows that citations of foreign precedents in the case law of the Supreme Court of Canada are found more

226 227

Makin, ‘Justice Ian Binnie’s exit interview’ (n 128). Ibid.

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often in majority and dissenting opinions than in unanimous judgments or concurring opinions.228 The interviewed judges considered that the citation of judgments from foreign courts in the reasoning of the Supreme Court’s judgments is still quite unusual. When these citations occur, this is most often in human rights cases.229 A judge observed that the Supreme Court of Canada has an obligation to the legal community in Canada to show that the Court has informed itself about relevant international and foreign sources, even though the citation of foreign sources is not obligatory. This would show the Court’s awareness of these sources and help to make sure that what is relevant is collected. In particular, the judge thought that the Courts of Appeal in the Canadian provinces appreciate the citation of foreign sources by the Supreme Court. After all, the Courts of Appeal do not have the same resources as the Supreme Court regarding the research of foreign legal sources. These observations are corroborated by the view expressed by Justice Binnie in a lecture given by him in London in 2010. He indicated that one of the reasons for the Canadian judges to cite foreign sources is ‘to encourage re-examination of earlier Canadian precedents’.230 He mentioned the example of cases concerning the extradition of individuals to countries where they would face the death penalty. Justice Binnie feels that the review of foreign sources in these cases ‘assured the legal community and the broader public in Canada that all potential sources of enlightenment had been taken into account’.231 (iii) US Supreme Court In the United States, an interviewed judge of the Supreme Court indicated that it is his aim to give an explanation of judicial decisions which can be understood by law students, and even by a general audience. The judge emphasised that in the cases coming before the US Supreme Court there are always two sides to the legal question. Therefore, in the reasoning of their opinions the judges cannot and do not have to prove that they are right. The judge observed that, moreover, decisions of the US Supreme Court are not made to be popular. The judges are not democratic representatives. According to the interviewed judge, he and his colleagues on the bench are supposed to be unpopular. Also, they might get it wrong.

228

Gentili, ‘Canada: Protecting Rights’ (n 167). See further Chapter 5, II. 230 I Binnie, ‘Foreign Sources: Searching for Enlightenment or a Fig Leaf?’ (London, July 2010). 231 Ibid. 229

132 Incorporating the Transnational Part of the interaction between the judges of the US Supreme Court concerns their approach to the style of judging of the Court. This is of particular significance in an organisational setting which allows the judges to produce seriatim opinions. Justice Ginsburg has observed that she and her colleagues make an effort ‘to speak in not too many voices’.232 At the beginning of the nineteenth century, the then-Chief Justice John Marshall expressed his preference for a practice of unanimous judgments. He argued that unanimity would ensure greater respect for the Court and a better comprehension of its decisions.233 Following Marshall’s view, the US Supreme Court has strived to make it its practice to hand down opinions that speak for the Court. Still, unanimity is reached only in a minority of the decided cases. During the 2010 Term, for example, 30.5 per cent of the Court’s full opinions were unanimous.234 The question that the individual judges face is when to make use of the prerogative to issue a separate concurring or dissenting opinion.235 Because of the importance given by the judges to the reaching of unanimous opinions, dissents in the Court will stand out. Justice Ginsburg has pointed out that, in particular, dissents which are presented orally will receive immediate attention. Separate opinions are not usually presented orally. Therefore, when a judge chooses to present his dissenting opinion in this way, he or she implies that ‘the Court’s opinion is not just wrong, but grievously misguided’.236 By choosing wisely on when to dissent, judges can express a powerful personal point of view, which might induce legislative change. Concerning the use of international and comparative law, an interviewed judge observed that a dissenting opinion allows using an argument from foreign law which the majority might not want to include in its judgment. This situation can indeed occur, since the citation of foreign law has become a controversial issue in the United States, including within the Supreme Court.237 (iv) French Highest Courts Again, the practices in the examined civil law systems are different from those in the Anglo-Saxon legal systems. Judgments of the highest courts in France and the Netherlands are unanimous. Judges are not allowed to publish a concurring or dissenting opinion. The French Cour de cassation

232

Ginsburg, ‘Judicial Stimulation of Legislative Change’ (n 139) 7. Ibid, citing KM ZoBell, ‘Division of Opinion in the Supreme Court: A History of Judicial Disintegration’ (1959) 44 Cornell Law Quarterly 186, 193. 234 ‘The Supreme Court 2010 Term: The Statistics’ (2011) 125 Harvard Law Review 362, 367. 235 Ibid. 236 Ibid 9. 237 See Chapter 5, IB. 233

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is famous for the short style of reasoning of its judgments. This convention is related to the idea that the judgment should contain a reply to the arguments made by the party asking for cassation. In criminal cases, these arguments (‘moyens’) are reproduced in the judgment. In civil cases, they are enclosed in an annex to the judgment. The arguments contain the socalled visa, that is, the references to legal provisions and previous judgments which are considered relevant for the deciding of the case, and the reasons for criticising the judgment of the lower court. The judgment will sometimes contain an overview of the facts of the case. It will finish with a reply to the legal question at hand. An interviewed judge explained that the short style of reasoning in French judgments is based on the syllogism, which connects a general presupposition with a particular one, culminating in a conclusion.238 In this light, comparative legal instruments are ‘peripheral’ documents for the Cour de cassation, and these instruments have less weight than in common law systems. However, a judge considered that supposed differences concerning the use of comparative law by judges in common law and civil law systems are largely a matter of appearance.239 At the Cour de cassation, comparative law is considered to be a tool which can help the reflection of judges in specific cases. Comparative law can be an important indication regarding the development of the attitude concerning a specific topic. More practical reasons also seem to play a role with regard to the shortness of the French judgments. A former Secretary-General of the Conseil constitutionnel has observed that it would be too time-consuming for the Conseil constitutionnel to be more elaborate in its decisions, for example, by adding citations to its own case law.240 Reflecting on the requirements regarding the reasoning of judgments, a judge of the Cour de cassation observed that the longer judgments of the ECtHR are not always clearer than the short decisions of the French courts. According to this judge, English and American judgments are often no more than a long affirmation of the current state of the law. The judge felt that an explanation of a judgment is especially required when the court changes its case law. If there is a change of the case law, arguments from comparative law can help to clarify a change of mentality which has taken place. Comparative arguments can also feature as an element in the appreciation of the case. All French judges who participated in the interviews were aware of the criticism of the style of apodictic judgments. One judge emphasised that the

238 Concerning this style of reasoning, see A Touffait and A Tunc, ‘Pour une motivation plus explicite des decisions de justice notamment de celles de la Cour de cassation’ (1974) 72 Revue trimestrielle de droit civil 491. 239 See further Chapter 5, III. 240 JE Schoettl, ‘Ma cinquantaine rue de Montpensier’ (2008) no 25 Cahiers du Conseil constitutionnel, available at www.conseil-constitutionnel.fr.

134 Incorporating the Transnational judgment is written with the aim of being comprehensible. It was observed that longer judgments, such as the judgments of the ECtHR or the ICC, are not necessarily more digestible. Moreover, the short style of reasoning is considered to force judges to be very precise and nuanced. Finally, also for a pragmatic reason, the Cour de cassation is not willing to change the style of reasoning of its judgments: it is the style in which the judges have been trained. An interviewed judge further observed that criticism of the style of reasoning is related to a misunderstanding of the working methods of the French courts. This judge recalled a visit of four French law professors to the Cour de cassation, where they attended hearings and judicial deliberations. These professors seemed to be surprised to find out how well-prepared the cases were before the hearings, how much frankness and freedom for judges to express themselves there was during the deliberations, and how carefully and with an eye for detail the judgments were drafted. In this anecdote resounds the observation of Mitchel Lasser concerning the ‘hidden’ nature of the judicial deliberations in the Cour de cassation.241 Interestingly, a former judge of the Cour de cassation observed that the attitude of French judges to the style of reasoning does seem to be changing. The general attitude of the judges is no longer focused on the legal norm and its application but more on the category of factual situations in which a case can be classified. This has led to an opening of the minds of the judges. They are willing to learn about the manner in which a specific category of factual situations was handled by judges in other legal systems. An example concerns the Perruche case about ‘wrongful life’.242 Another judge confirms that an opening of the minds (‘ouverture d’esprit’) has taken place amongst French judges concerning the possible styles of judicial reasoning. According to this judge, this development can be explained by the effects of the Europeanisation of the law. The traditional style of reasoning in French judgments is put in question more often, and the Cours d’appel already use a more developed style of reasoning than before.243 On the Intranet, judges have access to a section on Methodology, in which the Cour de cassation gives guidelines to the lower courts concerning specific methodological issues. Furthermore, the Cour de cassation has started to publish press releases (‘communiqués’) in selected cases, totalling about 100 a year. These press releases are available to the public, and can

241

Lasser, Judicial Deliberations (n 181). Perruche Cass (assemblée plénière), 17 November 2000, App no 99-13.701, Bulletin 2000 AP No 9, 15. Concerning the transnational judicial dialogue on this topic, see I Giesen, ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’ (2012) 8 Utrecht Law Review 35. 243 On the development of the style of reasoning of the French courts, see Lasser, Judicial Deliberations (n 181). 242

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be found in the Bulletin d’information de la Cour de cassation.244 On the Intranet of the courts, additional press releases are available. At most there will be about 200 press releases in civil cases for a total of 20,000 decisions a year. In these press releases, the Court’s decision is explained and placed in its context. Explanations concerning the methodology and reasoning of the judgment can form a part of such a press release. A judge observed that this practice of issuing press releases has been criticised by academic scholars. They fear that a press release might create unclearness concerning the meaning of the judgment. In the long run, this development of the Court’s practice might have as an effect that the explanation given in the communiqué becomes part of the judgment itself. (v) Dutch Highest Courts As concerns the reasoning of its decisions, the Hoge Raad used to have a culture of short, apodictic judgments like the French Cour de cassation, from which it inherited its working methods. However, over the years the practices of all three chambers of the Hoge Raad have evolved and judgments are now reasoned more extensively than in the past. An average judgment will consist of two or three pages, while the reasoning in more difficult cases can be much longer,245 although still short in comparison with the judgments of the Anglo-Saxon courts. As a rule, no citations of foreign law are included in the reasoning of judgments. In light of the relatively concise style of reasoning, it is felt by the judges that the opinion of the Advocate-General adds to the transparency of the judgments. This opinion is published alongside the judgment and contains a more detailed consideration of the arguments, sometimes including comparative legal research. Some of the judges in the Hoge Raad indicated that they would welcome the possibility to publish dissenting opinions.246 These judges felt that the trust of society can be enhanced if the opinion of the minority on the judicial panel is expressed. However, it was acknowledged that the possibility to dissent might be detrimental to the authority of the majority judgment. Other judges in the Hoge Raad were firmly opposed to allowing dissenting opinions. These judges thought that the possibility to dissent would not contribute anything to the Dutch system of judging. Moreover, they feared that through dissenting opinions judges might be tempted to associate

244 See www.courdecassation.fr/publications_cour_26/bulletin_information_cour_ cassation_27. 245 See, eg Baby Kelly HR 18 March 2005, NJ 2006, 606. 246 Publications by judges on this topic include WME Thomassen, ‘Het geheim van de raadkamer en de dissenting opinion’ (2006) 81 Nederlands Juristenblad 686; WDH Asser, ‘Het geheim van de raadkamer en de vrijheid van publicatie’ (2006) 81 Nederlands Juristenblad 691.

136 Incorporating the Transnational themselves too much with a specific point of view. Finally, the judges feared that the possibility to dissent would put too great a focus on the ego of individual judges. This would not fit the Dutch tradition, in which the judge as a person is supposed to be hardly visible.

E. Conclusion The description in the previous pages demonstrates that highest court judges in Western countries have developed their working methods in the globalised legal context. The aim of the changes in judicial practices appears to be two-fold. On the one hand, it concerns the improvement of the quality of judgments, for example, through the institutionalisation of comparative legal research. On the other hand, the courts aim to improve the efficiency and transparency of court proceedings, for example, through the providing of insight into the judicial deliberations. Interestingly, it appears that the examined courts take inspiration from the practices of foreign courts when rethinking and reforming their working methods. Even long-standing practices connected with the national legal tradition, such as the research of legal materials or the style of reasoning, are changing. Concerning the study of foreign law, many judges in the Anglo-Saxon courts acknowledge the importance of doing their own research and of directing specific requests to the counsel of parties in a case or to amici curiae. In the civil law systems, judges also invest their own time in research. Moreover, the highest courts in these countries have developed the use of commissioned academic research (France) and the request of information through judicial networks (the Netherlands). In this way, the judges in all of the examined Western highest courts have obtained better access to foreign legal sources. Concerning the style of judgments, the courts also seem to be developing their practices towards a common standard. The judges in the Anglo-Saxon courts emphasise the importance of unanimity. In this respect, the judges of the UK Supreme Court currently make an effort to hand down more majority judgments. To judges in Canada and the United States, this was already important. However, the controversy between the US judges concerning the citation of foreign law can make it difficult to reach unanimity in specific cases. An individual judge can then use a separate opinion to develop an argument based on his or her analysis of foreign legal sources. In continental Europe, by contrast, the judges in the highest courts are considering the value of separate opinions. Judges in France and the Netherlands, who need to hand down unanimous judgments, have started a debate about the usefulness of concurring and dissenting opinions. In this way, the transparency of judicial reasoning could be increased. With this same idea in mind, the style of judicial reasoning of the French and Dutch courts has become more

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elaborate over the years. Furthermore, the courts are aiming to improve their communication with the general public through press releases about important judgments. This development of the working methods of the examined highest courts indicates that a convergence of judicial practices might be taking place. Judges are considering the ‘best practices’ developed by their counterparts in foreign jurisdictions and they are reshaping their own practices on the basis of this foreign inspiration. Still, it should be kept in mind that the judicial function and the practices of the highest courts in each of the examined legal systems are defined by the constitutional norms and traditions of the legal system. When reconsidering the question of constitutional change in Chapter 6, we will consider to what extent these constitutional norms and traditions enable and constrain the further development of the working methods of the highest national courts under the effects of globalisation.

IV. CONCLUSION

In the globalised legal context, the role of the highest national courts in Western legal systems has changed. The functions of these courts as guardian of the law and as developer of the law have been expanded with a ‘transnational’ element. This element encompasses, first, a proliferation of foreign legal norms, which have a binding or inspiring status in the decision-making of the highest courts. Secondly, the institutional setting for judicial decision-making has developed from a hierarchical national judicial system, in which the highest courts are at the apex, into a network of communicating courts in national, supranational and international jurisdictions, in which the highest national courts are partners in a process of transnational judicial decision-making. This new element of the judicial functions has prompted judges in the highest courts of the United Kingdom, Canada, the United States, France and the Netherlands to develop their international relations with judges in foreign jurisdictions with the aim of exchanging ‘best practices’ for the solution of domestic cases and the aim of collaborating on the development of shared legal norms. Moreover, the examined highest courts have made adaptations in their working methods in order to facilitate the consultation of foreign law in the process of judicial decision-making. The analysis of these adaptations suggests that some courts have considered the organisation and working methods of foreign highest courts when reforming their own practices. In this sense, a process of convergence of judicial working methods could be in progress. The interviews yielded important insights into this changing role of highest courts in the globalised legal context, and in particular concerning the role of individual judges in the external relations and judicial decision-making of

138 Incorporating the Transnational their court. Individual approaches of judges seem to play a significant role in their engagement in judicial exchanges and judicial networks and in the use of sources, including international and comparative legal materials, in judicial decision-making. Indeed, the involvement in international relations and the consultation of foreign judgments and comparative academic literature appear to depend to a large extent on the background, language skills and interests of individual judges. It remains to be seen to what extent the approaches of the judges concerning the use of foreign law in concrete cases can also be categorised on the basis of personal characteristics, such as a more practical or more theoretical inclination to judging, more or less responsiveness to the needs of society, or other factors. The ideas of a judge concerning his or her role have an influence on the margin of discretion which this judge considers to have in hard cases, that is, judges may have different views regarding the degree of deference which they should show to the legislator and the executive power.247 Similarly, judges may have different views regarding the role which foreign legal ideas and experiences can or should have in judicial decision-making. These approaches can be traced back to the legal training and professional experiences of judges, their interaction with colleagues at the court, and the personal views on judicial discretion in constitutional and legal interpretation. Changes of the individual approaches of judges can take place through cognitive processes of personal reflection, informed by personal experience and the participation in professional debates.248 The analysis in the next chapter, concerning the use of foreign law by the highest court judges in the deciding of cases, will be able to shed more light on this matter.

247

Barak, The Judge in a Democracy (n 126) 118. See especially RA Posner, How Judges Think (Cambridge, MA, Harvard University Press, 2008). 248

5 The Use of Foreign Law in Judicial Decision-Making

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HY DO JUDGES use foreign law in the deciding of domestic cases? How do the highest national courts use references to foreign legal sources in their deliberations and judgments? Which similarities and differences can be identified between the highest courts in the United Kingdom, Canada, the United States, France and the Netherlands? This chapter examines the use of foreign law by the highest national courts in these five legal systems. Particular focus will be on the individual approaches of judges and on possible signs of convergence between the practices of the examined highest courts. The analysis will address the views expressed by judges with regard to the status granted to foreign law in judicial decision-making. Furthermore, we will examine the use made of foreign law in specific cases, and the justification of references to foreign law. The views of the judges will be analysed in light of the published judgments of the highest courts, public speeches of judges, and doctrinal writings concerning the use of foreign law by the examined highest courts. So far, the term ‘foreign law’ has been used in this study as a general term referring to legal sources which were elaborated outside of a specific national legal system. When considering the status and use of foreign law in the judicial decision-making of highest courts, however, a distinction has to be made on the basis of the formal status which foreign law has in specific national legal systems. This distinction concerns the difference between binding and non-binding foreign legal norms. On the one hand, the analysis in this chapter will address sources which originated at the international or supranational level and which have been implemented in a specific national legal system. Through their implementation, these norms have acquired the status of binding legal norms of the national legal order. These sources encompass: provisions of international treaties; peremptory norms of customary international law (ius cogens); other customary international law; and provisions of European Union law which have been accepted as binding legal norms in EU Member States. The use of these sources in judicial decision-making concerns the application of international law. On the other hand, the analysis will focus on sources which originated outside of

140 The Use of Foreign Law in Judicial Decision-Making a specific national legal system and which have not acquired the status of binding law in this legal system. These sources concern legal provisions of a varied nature, including international treaties which have not been implemented in a specific national legal system, and EU law in states which are not a member of the European Union. Furthermore, this category of non-binding sources encompasses the laws and case law of foreign national jurisdictions and international opinion.1 The use of these sources in judicial decision-making concerns the reference to comparative law in order to inform the decision-making in domestic cases. The analysis will first address the status which binding and non-binding foreign law has in the decision-making of the examined highest courts, according to the views of the judges on these courts. Secondly, examples from the case law of the courts, which were mentioned during the interviews with the judges, will be discussed in order to illustrate the use that is made of international and comparative law by the highest courts when deciding cases. Finally, the considerations of the judges concerning the justification of their developed practices will be presented and analysed. This overview will enable us to assess how the mind-sets of judges concerning judicial decision-making in the globalised legal context have translated into the practices of the highest courts. Moreover, the comparison of the experiences of the judges will reveal to what extent the development of these judicial practices has been influenced by the constitutional arrangements for the functioning of the highest national courts and by national legal culture.

I. STATUS OF FOREIGN LAW

The national Constitution of a legal system will grant a certain status to specific legal sources. Nevertheless, in order to assess the actual status of these sources in the legal practice in that system, it is necessary to investigate what status the actors that apply the law, in particular the judges, attribute to these sources. Indeed, the Constitutions of the legal systems

1 The analysis does not include the reliance of judges on foreign academic authors. On this topic, see, inter alia, A Braun, ‘Burying the Living? The Citation of Legal Writings in English Courts’ (2010) 58 American Journal of Comparative Law 27. She argues that the convention, which has existed for a long time in legal systems in Europe, not to cite living academic authors can have different reasons. In the English courts, this convention related to ‘a desire amongst the English legal profession to maintain control over the development of the common law and to assert its own power’ (at 51). In continental European legal systems, this convention was based on ‘the aim … to prevent legal scholars from having an impact on the decision-making process and to confirm the legislature as the primary source of law’ (Ibid). Reservations concerning the judicial use of non-binding foreign law might be similar to these motives. However, an important difference seems to be that the enacted laws and judgments of foreign liberal-democratic institutions have a stronger democratic legitimation than the writings of legal scholars.

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examined in this research are not completely clear on the status of foreign law. This lack of clarity has given rise to debate amongst judges as well as in the wider legal community. The considerations and provisional outcomes of this debate in the five examined legal systems will be analysed in this chapter. First, the impact of binding sources of international law on the decision-making of the highest national courts will be considered. Secondly, the analysis will address the role granted to non-binding comparative legal sources in the deliberations and judgments of the highest courts.

A. Impact of International Law The role of binding international legal norms in the decision-making of the highest courts is related to the constitutional status of these norms. The most important distinction in this respect concerns the difference between dualist mechanisms of implementation of international law, which exist in the examined Anglo-Saxon legal systems, and monist mechanisms, such as those existing in France and the Netherlands. The implications of this aspect of constitutional design on the decision-making of the highest courts will be outlined in the next paragraphs. (i) UK Supreme Court The United Kingdom has a dualist legal system, meaning that international treaties need to be transposed into national legislation before they can take effect at the domestic level.2 The interviewed judges felt that, in the UK legal system, the most influential sources of international law are the European Convention on Human Rights (ECHR) and EU law.3 An interviewed judge estimated that reference is made to the ECHR currently in half of the cases that come before the UK Supreme Court. In a more general sense, several judges in this Court indicated a growth in the amount of public law cases which were brought before the Appellate Committee of the House of Lords and which are now brought before its successor the Supreme Court. This trend started during the 1960s, and can be explained by the increased influence of the ECHR and the Strasbourg jurisprudence in the domestic legal system, as well as by the increased use of the remedy of judicial review against the public authorities. The increased importance of administrative 2 On the monist and dualist models and their role in the integration of treaties in national legal systems, as well as on the role played by courts in this respect, see especially MA Waters, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 628. 3 See also CC Murphy, ‘Report on Ireland and the UK’ in 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).

142 The Use of Foreign Law in Judicial Decision-Making redress, as well as the influence of the ECHR and EU law on the development of the domestic law on this topic, is corroborated by research carried out by the Law Commission.4 The interviewed judges confirm that before 1998, when the Human Rights Act (HRA) 1998 was adopted by the British Parliament, the ECHR was already very influential in the British legal system. Nonetheless, the judges feel that with the adoption of the HRA 1998 a radical change took place, also in the minds of judges, concerning the attitude towards this topic. Further sources suggest that this change towards a human rights culture might have been stimulated by the significant training which judges and government officials in the United Kingdom received with regard to the ECHR.5 Despite the status and influence of the HRA 1998, and hence of the ECHR, it is not clear if judgments of the European Court of Human Rights (ECtHR) have the authority of precedents in the decision-making of the UK Supreme Court.6 A grey area has emerged here because of the ambiguous status of the HRA 1998. Most of the interviewed judges agreed with the view of the late Lord Bingham, who considered in Ullah that British judges are bound by the ECHR and the case law of the ECtHR.7 However, one judge explicitly contested this view, and stressed that the HRA 1998 has not entrenched the ECHR in the British Constitution. This judge pointed out that the judges only have an obligation to take account of the treaty8; they are not obliged, and do not have competence, to strike down a legal provision which violates the HRA 1998. Concerning the application of ECtHR judgments, Lord Bingham had further observed that ‘[t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.9 Currently, the academic and judicial debate in the United Kingdom focuses on the question what this required ‘mirroring’ of legal protection offered by the ECHR and by the Strasbourg Court entails exactly.10 Some judges have contributed to this debate through academic

4 Law Commission, Remedies Against Public Bodies: A Scoping Report (2006), available at lawcommission.justice.gov.uk/areas/administrative-redress.htm. 5 Lord Woolf, ‘Opening of the Judicial Year European Court of Human Rights: Strasbourg’ (Strasbourg, 23 January 2003), available at www.judiciary.gov.uk/media/speeches/2003/opening-judicial-year-european-courts-human-rights-strasbourg. 6 See Chapter 2, IIIB, concerning the role of precedent in common law and civil law systems. 7 R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 (17 June 2004), para 5. 8 Human Rights Act 1998, s 4(2). 9 R (Ullah) v Special Adjudicator (n 7) para 20. 10 See, eg T Rainsbury, ‘Their Lordships’ Timorous Souls’ (2008) 1 UCL Human Rights Review 32; E Bjorge, ‘National Supreme Courts and the Development of ECHR Rights’ (2011) 9 International Journal of Constitutional Law 5.

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publications or public speeches. Lord Irvine, for example, has stated that British judges should depart from the ECHR or Strasbourg case law if the determination of Convention rights for the resolution of a conflict at the domestic level requires this.11 An influence on the recourse to ECtHR case law is the acknowledgment by the British judges of a certain ideological affinity with the Strasbourg Court. In comparison with other courts the Strasbourg case law is considered to fit the ideological framework of the British highest court regarding human rights protection relatively well. A judge mentioned that the UK Supreme Court used to refer more often to the Supreme Court of Canada, which developed important human rights case law after the introduction of the Canadian Charter of Rights and Freedoms in 1982.12 However, this judge observed that the UK Supreme Court is now shifting its attention to Strasbourg, as it considers the Canadian Supreme Court’s jurisprudence to be too liberal. A research of the UK Supreme Court’s case law shows that in 2010, Canadian case law was still referred to in eight cases. Citations of ECtHR judgments could be found in 14 cases decided in 2010. The influence of EU law in the English legal system has developed gradually. A judge explained that until the 1980s the national attitude was against accepting the primacy of the law of the European Community (EC), as the European Union was called then. This changed with the Factortame jurisprudence, in which the European Court of Justice (currently named the Court of Justice of the European Union (CJEU)), reconfirmed that the national courts, in this case in the United Kingdom, should set aside a rule of national law which conflicted with EC law,13 and the Law Lords accepted the duty to interpret an Act of Parliament in conformity with the applicable EC law.14 Besides the ECHR and EU law, other binding international legal sources play a role in the decision-making of the UK Supreme Court as well. Judges mentioned the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, which is often applied in conflict of law cases.15 Another example concerned the Conventions issued by the Hague Conference on Private International Law.16

11

Lord Irvine, ‘A British Interpretation of Convention Rights’ (2012) Public Law 237. See below, IIB. 13 Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and others [1990] ECR I-2433. 14 R v Secretary of State for Transport, ex parte Factortame Ltd and others [1991] 1 AC 603. 15 In cases falling within the scope of the Brussels I Regulation (Council Regulation (EC) 44/2001), the legal questions arising will be dealt with under EU law. 16 For a complete overview, see www.hcch.net/index_en.php?act=conventions.listing. 12

144 The Use of Foreign Law in Judicial Decision-Making (ii) Supreme Court of Canada The Canadian mechanism for the reception of international law in the domestic legal system is neither monist nor dualist in nature. International treaties require implementation through national legislation, while customary international law takes effect immediately and directly in the domestic legal system.17 The implementation requirement with regard to international treaties is similar to the British system.18 Justice Louis LeBel, in an article co-written with Gloria Chao, observed that international law is integrated in the Canadian legal system on the basis of a balancing of two principles. On the one hand, an effort is made to merge international legal rules into the domestic legal system in order to ensure respect of the international obligations taken on by the state. On the other hand, the system of implementation of international law in some circumstances allows the Canadian authorities to give precedence to domestic law on the basis of the principle of self-government.19 The interviewed Canadian judges felt that international treaties are of much value for the Supreme Court’s decision-making. Furthermore, in a public lecture on international law and human rights, Justice Rosalie Silberman Abella observed in general terms that ‘it is a tribute to the perceived legitimacy of international law that it is repeatedly invoked by the Supreme Court of Canada as an interpretive guide when deciding domestic cases’.20 However, she considers that the achievements of states concerning compliance and dispute settlement in the field of human rights law are much less advanced than, for example, in the field of international trade law.21 An interviewed former judge of the Supreme Court of Canada observed that there is public support for the use of international legal sources. The Canadian public does not have a phobia against international development. The judge felt that this attitude can be explained in part on the basis of the Canadian history. Canadian culture is not monolithic, as the population consists of the original people and immigrants from a variety of countries. The judge stressed that the public interest is important in judicial 17 G van Ert, ‘Using Treaties in Canadian Courts’ (2000) 38 Canadian Yearbook of International Law 3, 4–5. 18 Ibid 16–17. 19 L LeBel and G Chao, ‘The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law’ (2002) 16 Supreme Court Law Review (2d) 23, 24–25, referring to G van Ert, Using International Law in Canadian Courts (The Hague, Kluwer Law International, 2002) 5–11. See also L LeBel and A Gonsalves, ‘Comments on the Integration of International Law into the Canadian Legal System’ (International Law and Litigation for US Judges, Federal Judicial Center, 30 October 2006), available at www.fjc.gov/public/pdf.nsf/lookup/Intl0616.pdf/$file/ Intl0616.pdf. 20 R Silberman Abella, ‘International Law and Human Rights: The Power and the Pity’ (2010) 55 McGill Law Journal 871. 21 Ibid.

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decision-making. Judges look at societal values and ask: has the legislator captured that? The judges of the Supreme Court of Canada feel that they serve the public. They are agents of the people or agents for democracy. Therefore, the judges take account of surveys and other expressions of the public opinion. This awareness of societal values can be seen, for example, in the Supreme Court’s case law concerning hate speech, in which attention was paid to the views presented by NGOs.22 (iii) US Supreme Court In the United States, ratified international treaties become part of the domestic law without a need for transposition.23 However, not all treaty law provisions are considered to be self-executing.24 Examples given by the judges of binding treaties which are applied by the US Supreme Court are the Warsaw Convention on international carriage by air,25 and the Hague Convention on the Civil Aspects of International Child Abduction.26 In a published lecture, Justice Sandra Day O’Connor stated that information about international law has become increasingly important for US judges under the effects of globalisation. Nonetheless, she pointed out that only very few international treaties can be directly enforced in the United States, and she emphasised that the courts cannot and should not abandon ‘their character as domestic institutions’.27 She further pointed out that cases involving questions on international law often do not make it to the Supreme Court’s docket.28 An interviewed judge of the US Supreme Court observed that there is a difference between the role of international and foreign law in constitutional interpretation and in the interpretation of statutes. Statutes in the United States need to be interpreted in light of binding international treaty law, which has become domestic law through its implementation in the US legal system. Therefore, international law is directly relevant for the decision of cases. Indeed, the Supreme Court has a long-standing practice of interpreting Acts of Congress in conformity with international law.29 22 See, eg R v Keegstra [1990] 3 SCR 697, in which, inter alia, the Women’s Legal Education and Action Fund and the Canadian Civil Liberties Association intervened. 23 Constitution 1787 (US), art 6. 24 Restatement (Third) of the Foreign Relations Law of the United States, s 111(4). See JD van der Vyver, Implementation of International Law in the United States (Frankfurt am Main, Peter Lang, 2010) 34–35. 25 Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (Warsaw Convention), available at www.dot.gov/ost/ ogc/Warsaw1929.pdf. 26 See www.hcch.net. 27 S Day O’Connor, ‘Keynote Address’ (American Society of International Law, Washington, DC, 16 March 2002) (2002) American Society of International Law Proceedings 348, 349. 28 Ibid. 29 Ibid 350.

146 The Use of Foreign Law in Judicial Decision-Making However, the role of foreign authorities in constitutional interpretation is a different one. Foreign legal sources, including binding international law, are not binding upon the Supreme Court in this context. The interviewed judge observed that the justification of looking to international or foreign law or international opinion in constitutional interpretation is of an indirect nature.30 The debate in the United States about this topic will be addressed in more detail below. (iv) French Highest Courts The basic rule in the French legal system, which can be classified as a monist system, is that ratified international treaties or agreements, after their publication, have precedence over acts of Parliament.31 An interviewed judge specified that ius cogens is applied by French judges as a source of binding international law. Legal sources originating at the international level have become a permanent point of reference for the French judges. All of the interviewed judges emphasised the ubiquity of EU law and the ECHR in the deliberations of the national highest courts in France. Many international documents, including the ECHR and UN texts, have been incorporated into national law. This has happened, for example, in the French Code de Procédure Pénal (Code of Criminal Procedure), which according to a judge is the ‘bible’ of the judges in the Criminal Law Chamber of the French Cour de cassation. Moreover, this judge pointed out that in criminal cases before this Chamber in nine out of ten cases a provision of the ECHR is referred to by counsel in the arguments (‘moyens’) of the appeal. The approach of the French courts concerning EU law is more complicated because of the supranational character of this body of law. Notwithstanding the provision of article 55 of the Constitution 1958, the French courts initially hesitated to accord supremacy to EU law over national legal provisions in individual cases.32 This hesitance relates to the French legal tradition. It was considered that the constitutional provision was addressed to the legislator, and that the judiciary held no competence to set aside legal provisions in individual cases. This approach changed slowly and only long after the CJEU set out the national courts’ mandate in its judgments in Van Gend en Loos, Costa v ENEL and Simmenthal.33

30

See further below, IB. Constitution 1958 (France), s 55. 32 M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) 50. 33 Case 26-62 Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 00003; Case 6-64 Costa v ENEL [1964] ECR 01195; Case 106-77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629i. See also Claes, The National Courts’ Mandate (n 32) 154–55. 31

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Each of the highest courts in France has presented its approach to international treaty law in a landmark decision. The Conseil constitutionnel was first. In its IVG judgment of 15 January 1975, the Council considered that its competences did not include the review of the conformity of legal provisions in the light of treaty law provisions.34 A legal provision could therefore not be judged unconstitutional on the basis of non-conformity with treaty law. The Cour de cassation followed soon after. In its judgment in Société Cafés Jacques Vabre, the Court made clear that a provision of the EC Treaty could set aside a national legal provision, even if the national law was of a later date than the treaty law provision.35 The Conseil d’Etat only accepted this view in 1989, in its Nicolo judgment.36 The development of the individual approaches of French judges transpires from more recent expressions of judicial views. Pierre Bézard, the former President of the Commercial Chamber of the French Cour de cassation, observed in a speech given in 1994 that EU law is ‘un droit intégré, profondément intégré’ (integrated, profoundly integrated, law).37 Regarding the Cour de cassation, Bézard observed that the functioning of the French highest court has changed significantly under the influence of EU law, in particular due to the obligation to respect the decisions of the European Commission and to give effect to the judgments of the CJEU concerning the interpretation of the EU Treaties. On the relations between the Cour de cassation and the CJEU, this judge remarked that the respect shown by the highest national court to the Luxembourg Court has limited the judicial discretion of the Cour de cassation, including the scope for research of comparative and international legal sources in the course of judicial decisionmaking.38 Others have identified the development of a ‘judicial dialogue’ between the French national highest courts and the European Courts of Strasbourg and Luxembourg.39

34

Loi relative à l’interruption volontaire de la grossesse CC 15 January 1975, Recueil 19. Société Cafés Jacques Vabre Cass (ch mixte), 24 May 1975, D 1975, 497. 36 Nicolo CE, 20 October 1989, Recueil Lebon 190. 37 P Bézard, ‘Les magistrats français et le droit comparé’ (1994) 46 Revue internationale de droit comparé 775, 778: ‘[O]n s’aperçoit que la Cour de justice construit une jurisprudence qui est très normative à partir de critères précis. Que fait alors la Cour de cassation? Elle amène les juges du fond à respecter les critères ainsi dégagés par la Cour du Luxembourg. Elle s’en tient à cette mission. La liberté de la Cour suprême est ainsi bien réduite. Il n’y a alors pas place pour le droit comparé et même plus place pour le droit national’. [One realises that the Court of Justice constructs a case law which is very normative on the basis of precise criteria. What then does the Cour de cassation do? It brings the trial courts to respect the criteria thus elucidated by the Luxembourg Court. It sticks to that mission. The discretion of the highest court thus is very limited. There then is no place for comparative law and even no more space for the national law.] 38 Ibid 779. Concerning the role of comparative law in the judgments of the French highest courts, see further below, IB. 39 See, eg JM Sauvé, ‘Préface’ in R Badinter et al, Le dialogue des juges: Mélanges à l’honneur du président Bruno Genevois (Paris, Dalloz, 2009). See also Chapter 4, IA. 35

148 The Use of Foreign Law in Judicial Decision-Making (v) Dutch Highest Courts International law has gained significant influence in the Dutch legal system, in particular since the 1950s. This development was stimulated by the development of the European Union and the ECHR. Simultaneously, the current articles 93 and 94 were introduced in the Dutch Constitution. On the basis of these articles, international treaties are directly applicable after their ratification and take precedence over national legal provisions, including provisions of the Constitution. Whereas acts of the Dutch Parliament, on the basis of article 120 of the Constitution, cannot be the subject of judicial review in light of the Constitution, these acts can be reviewed in light of international treaty law.40 The Annual Report 2009–2010 of the Dutch Hoge Raad focused on the theme of the internationalisation of judicial decision-making. Issues addressed in this report included the increasing influence of international and EU law at the national level, references to the case law of international courts, preliminary questions to the CJEU, the interpretation of international legal provisions, and foreign attention paid to judgments of the Hoge Raad.41 In their Introduction of the report, the Court’s President Geert Corstens and the Procurator-General Jan-Watse Fokkens described the interaction between national and international law as ‘the two poles which pull at each other like magnets, sometimes pointing in opposite directions or seeming to lack coherence, but which … in any case yield fascinating images of the work of the Hoge Raad’.42 Indeed, the influence of international treaty law and EU law on the decision-making of the Hoge Raad is undeniable. Treaties which, according to the interviewed judges, regularly feature in litigation before the Hoge Raad include, for example, the Brussels Convention of 1968 and the Hague Conventions. Most of the judges further indicated the significance of the ECHR for their decision-making. The review of the conformity of legislation to the ECHR has been used by the Dutch courts to fill the hiatus in fundamental rights protection left by the ban on the judicial review of the constitutionality of legislation.43 The judges considered that the influence of the ECHR is especially visible in the area of criminal law. In more than a few cases, the Hoge Raad has overturned its established case law on the 40 See in more detail PPT Bovend’Eert and CAJM Kortmann, Constitutional Law of the Netherlands: An Introduction, 2nd edn (Alphen aan den Rijn, Kluwer Law International, 2012). 41 Hoge Raad (Netherlands), Verslag over 2009–2010, available at www.rechtspraak.nl. 42 Ibid 3. 43 E De Wet, ‘The Reception Process in the Netherlands and Belgium’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008); E Mak, ‘Report on the Netherlands and Luxembourg’ in Martinico and Pollicino, The National Judicial Treatment of the ECHR and EU Laws (n 3).

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basis of an ECtHR judgment. This happened, for example, in Kostovski v The Netherlands, which concerned the use of anonymous witnesses in criminal trials.44 Another example concerns the ECtHR’s judgment in Salduz v Turkey.45 This judgment was at the basis of the considerations of the Hoge Raad concerning the right of a defendant to consult a lawyer prior to police interrogations.46 The interviewed judges on the Hoge Raad further pointed out that EU law is very important in the Court’s decision-making. EU Directives are a predominant source in the field of tax law, in particular in VAT cases.47 EU law also often plays a role in cases concerning tenders and in intellectual property cases. In the field of criminal law, EU law is considered, inter alia, regarding the prevention of double prosecution (ne bis in idem), regarding the application of the Schengen agreement, and regarding the judicial cooperation in criminal matters within the former ‘third pillar’ of the European Union. In general, the Dutch judges strive to interpret national law in conformity with EU law as much as possible. Only occasionally, a preliminary question is sent to the CJEU in order to obtain a clarification on the meaning of a provision of EU law. Some of the interviewed judges in the Hoge Raad estimated that in their Court this happens about five to 10 times a year and more often in civil cases than in criminal or tax cases. The actual number of references for a preliminary ruling appears to correspond with the estimation given by the judges. Between 2005 and 2009 the Dutch courts respectively sent 36, 20, 19, 34 and 24 references per year to the CJEU, while of the whole of Dutch references to the CJEU between 1952 and 2010, on average one out of four (194 in a total of 767) were sent by the Hoge Raad. In the same period, 74 references were sent by the Raad van State.48 For the Raad van State, too, the ECHR and the case law of the ECtHR are important legal sources. Questions concerning the implementation of the ECHR have emerged with regard to different issues.49 Moreover, criticism by the Strasbourg Court of the Raad van State’s organisational set-up50 and its decision-making51 has led to an institutional reform and to discussion about the quality of the Raad van State’s decision-making.52 Concerning EU

44

Kostovski v The Netherlands (1989) Series A no 166 (ECtHR, 20 November 1989). Salduz v Turkey App no 36391/02 (ECtHR, 27 November 2008). 46 HR 30 June 2009, NJ 2009, 349, 350 and 351. 47 See also Hoge Raad, Verslag over 2009–2010, 42–43. 48 Court of Justice of the European Union, Annual Report 2010, available at curia.europa. eu/jcms/upload/docs/application/pdf/2011-05/ra2010_stat_cour_final_en.pdf. 49 See below, IIA. 50 Kleyn and others v The Netherlands [2003] VI ECHR (ECtHR, 6 May 2003). 51 Salah Sheekh v The Netherlands App no 1948/04 (ECtHR, 11 January 2007). 52 See, eg TP Spijkerboer, ‘Straatsburg en het Nederlandse vluchtelingenrecht’ (2007) 82 Nederlands Juristenblad 380; CMT Lindo, ‘Salah Sheekh en de Afdeling bestuursrechtspraak: Interview met mr P van Dijk, Voorzitter van de Afdeling’ (2007) 82 Nederlands Juristenblad 392. 45

150 The Use of Foreign Law in Judicial Decision-Making law, an interviewed judge considered that many areas of administrative law, including planning law and environmental law, are very much determined by EU law. In cases in these fields, which are often of a technical nature, the case law of the CJEU is the leading source for the decisions of the Raad van State. Another judge specified that, in the judicial decision-making of the Raad van State, the primary concern of the judges is the application of secondary EU law, in particular EU Directives. However, the application of primary EU law sometimes poses a concern as well, as it has for example in the ‘coffeeshop case’ which will be discussed below.53 The judge further pointed out that, since the entry into force of the Lisbon Treaty, the Raad van State has reconsidered how the Charter of Fundamental Rights of the European Union stands in relation to the ECHR.54 Having seen what impact binding international law is considered to have on the decision-making of the highest courts in the examined legal systems, we will next consider the role of comparative law in this regard.

B. Role of Comparative Law The legal status of non-binding foreign legal sources, such as the case law of foreign courts, does not follow clearly from the constitutional norms concerning the judicial function in the examined legal systems. Based on the interviews, the following picture can be sketched concerning the role which is attributed to non-binding foreign sources as comparative elements in the decision-making of the highest national courts. (i) UK Supreme Court The interviewed judges in the United Kingdom pointed out that in their judgments they cite all arguments which they consider to be persuasive. Indeed, in the common law conception, the judge feels that he owes a duty to counsel to explain why their arguments are not accepted. The judge is very courteous to the parties and their counsel, and his judgment can even be considered as an excuse to the losing party and its counsel.55 The wish for the completeness of the judicial reasoning is apparent in the treatment of non-binding foreign legal sources by the British judges. It was indicated in the interviews that comparative legal sources feature regularly in the decisions of the UK Supreme Court, and previously in the

53

ABRvS 8 April 2009, LJN BI0424. See further below, IIA. See below, IIA. 55 A Touffait and A Tunc, ‘Pour une motivation plus explicite des décisions de justice notamment celles de la Cour de cassation’ (1974) 72 Revue trimestrielle de droit civil 491. See also Chapter 4, IIID. 54

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judgments of the Appellate Committee of the House of Lords. Such sources include the judgments of foreign courts. The idea of the judges is that arguments for their reasoning may be found in decisions of foreign judges just as well as in other legal sources. If an argument is found in a foreign judgment and used in the reasoning of the case at hand, it is only courteous to mention the author, as one Supreme Court judge stated. However, foreign judgments are considered to have no binding value of precedent.56 Several judges pointed out that the citation of foreign judgments is often used merely to buttress the decision which was taken on the basis of binding legal sources. Examples mentioned by the interviewed judges will be discussed hereunder. Other non-binding sources can also play a role in the legal reasoning of the British judges. An example is formed by unimplemented treaties. As explained above, international treaty law needs to be integrated into the UK legal system through domestic legislation. This requirement entails that no cases can be brought to the domestic courts concerning the violation of obligations under treaties which have not been transposed into national law.57 Still, unimplemented treaties are sometimes considered legally relevant in the judicial decision-making of the British common law courts. In the judgment of the English Court of Appeal in Ahmad v ILEA, for example, it was considered that: [I]t is no longer possible to argue that because the international treaty obligations of the United Kingdom do not become law unless enacted by Parliament our courts pay no regard to our international obligations. They pay very serious regard to them: in particular, they will interpret statutory language and apply common law principles, wherever possible, so as to reach a conclusion consistent with our international obligations.58

(ii) Supreme Court of Canada Concerning Canada, the former Supreme Court Justice Michel Bastarache has argued that ‘to date, globalisation has had minimal impact on [the Canadian] Court’.59 His observation is based on available quantitative data concerning the citation of foreign law in the Supreme Court’s judgments, and the specific use that is made of foreign law in these cases. Although the number of references to international and foreign legal sources has

56

Concerning the concept of ‘precedent’, see Chapter 2, IIIB. Van Ert, ‘Using Treaties’ (n 17) 19. 58 Ahmad v ILEA [1978] 1 QB 36 (CA) para 48D–E (Scarman LJ); Van Ert, ‘Using Treaties’ (n 17) 28. 59 M Bastarache, ‘The Globalisation of the Law and the Work of the Supreme Court of Canada’ in S Muller and S Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010) 54. 57

152 The Use of Foreign Law in Judicial Decision-Making increased, the significance of these sources in the decision-making in concrete cases is limited.60 On the basis of the interviews with judges and available published information, a number of observations can be made. First of all, studies of Canadian case law have made clear that the courts strive to interpret legislative provisions in conformity with unimplemented treaties ratified by the Canadian government. This practice has developed on the basis of the presumption that the national legislator does not want to violate international law.61 Secondly, it seems that the use of comparative law by the Supreme Court has developed over the years and in particular under the influence of the introduction of the Charter of Rights and Freedoms in 1982. From the interviews, the following picture emerged. The judges felt that comparative law initially obtained more interest in the Supreme Court of Canada after the Charter of Rights and Freedoms entered into force. The Charter refers to the values of a ‘free and democratic society’,62 and contains similarities with catalogues of fundamental rights in national Constitutions elsewhere and with the ECHR. These similarities provide a basis for legal comparison. Furthermore, Justice Dickson, who was the first to write judgments on the basis of the Charter, thought it important to take into account general international consensus when judging Charter cases.63 Amongst the interviewed judges, several observed that the study of comparative law is part of the intellectual perspective of the Supreme Court of Canada. These judges pointed out that Canada is a fairly new country and has inherited both British and French influences.64 A judge further added that one cannot help but notice what other courts do, in particular very visible ones such as the ECtHR and the Supreme Court of Israel. Individual judges are considered to have put their mark on the development of the use of comparative law in the Supreme Court of Canada. Former Justice Gérard La Forest, who was a Supreme Court judge from 1985 until 1997, was mentioned as an example of a judge who was very interested in foreign law. One judge felt that the influence of comparative law on the Supreme Court’s decision-making became less after Justice La Forest left the Court. Still, the interest in comparative law within the Court is visible in various publications and public speeches of current and former

60 Ibid 42. See also Silberman Abella, ‘International Law and Human Rights’ (n 20). Concerning the specific use of foreign law in cases judged by the Supreme Court of Canada, see further below, IIB. 61 Van Ert, ‘Using Treaties’ (n 17) 28–29. See also LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 15–17. 62 Canadian Charter of Rights and Freedoms 1982, s 1. 63 See also RJ Sharpe and K Roach, Brian Dickson: A Judge’s Journey (Toronto, University of Toronto Press, 2003). 64 See Chapter 3, I.

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judges, including Justice L’Heureux-Dubé,65 Justice La Forest,66 Justice LeBel67 and Justice Binnie.68 Notwithstanding the described willingness of the Canadian judges to engage with foreign law, an interviewed judge observed that the interest of the judges in international consensus, and in foreign law as such, has faded over the years. In exceptional cases, for example a case in which the question of the definition of ‘torture’ arose,69 this interest still can be discerned. However, most judges of the Supreme Court seem to be of the opinion that comparative law does not have any real influence on the domestic legal system. The exception, according to several of the interviewed judges, was former Justice Claire L’Heureux-Dubé, who served on the Court from 1987 until 2002. She was described as a strong believer in the recourse to comparative law as a source of inspiration which can provide a formal basis for judicial decisions. In a published article, Justice L’Heureux-Dubé observed that: More and more courts, particularly within the common law world, are looking to the judgments of other jurisdictions, particularly when making decisions on human rights issues. Deciding on applicable legal principles and solutions increasingly involves a consideration of the approaches that have been adopted with regard to similar legal problems elsewhere … However, as courts look all over the world for sources of authority, the process of international influence has changed from reception to dialogue. Judges no longer simply receive the cases of other jurisdictions and then apply them or modify them for their own jurisdiction. Rather, cross-pollination and dialogue between jurisdictions is increasingly occurring. As judgments in different countries increasingly build on each other, mutual respect and dialogue are fostered among appellate courts. Judges around the world look to each other for persuasive authority, rather than some judges being ‘givers’ of law while others are ‘receivers’. Reception is turning to dialogue.70

The interviewed Canadian judges would not go this far when assessing the role of comparative law in their decision-making. Still, the judges mentioned the controversy in the US Supreme Court, and pointed out that no similar debate exists in the Canadian Supreme Court concerning the legitimacy of

65 C L’Heureux-Dubé, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court’ (1998) 34 Tulsa Law Journal 15. 66 GV La Forest, ‘The Use of International and Foreign Material in the Supreme Court of Canada’ (1988) 17 Canadian Council on International Law. Proceedings 230; GV La Forest, ‘The Expanding Role of the Supreme Court of Canada in International Law Issues’ (1996) 34 Canadian Yearbook of International Law 89. 67 LeBel and Chao, ‘The Rise of International Law’ (n 19); LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19). 68 I Binnie, ‘Judging the Judges: May They Boldly Go Where Justice Rand Went Before’ (Coxford Lecture, London (Ontario), 16 February 2012), available at www.law.uwo.ca/ news/2012/ian_binnie_judges_the_judges_at_coxford_lecture.html. 69 See below, IIA. 70 L’Heureux-Dubé, ‘The Importance of Dialogue’ (n 65) 16–17.

154 The Use of Foreign Law in Judicial Decision-Making studying foreign law. In particular, no strong resistance, such as the point of view advocated by Justice Scalia in the United States, exists in the Supreme Court of Canada. Justice Ian Binnie, in a lecture for common law judges and academics delivered in England in July 2010, explained that he finds the view of Justice Scalia too dismissive.71 In an interview with the Canadian newspaper Globe and Mail, Justice Binnie further observed: In the United States, some judges on the Supreme Court have a theory that the Constitution should have the meaning that it had in 1791, when the Bill of Rights was adopted, and that it is illegitimate for judges to depart from that. It also so happens that in 1791, public floggings and hangings, and so on, were a very popular pastime. In Canada, we have never had that view. We don’t have a Jefferson or an Alexander Hamilton or a Benjamin Franklin, for us to read their views on what the Constitution does or doesn’t mean. At the Québec conference, Sir John A. Macdonald’s most memorable reflection was: ‘Too much whisky is just enough.’ That was the guidance we got as to our Constitution.72

The judges further thought that the search for guidance in comparative law possibly is accepted more easily in Canada because it is a smaller country than the United States. The small size of the country might encourage judges to look beyond national borders sooner than judges in bigger countries, where an extensive body of national case law is available as a point of reference.73 Moreover, a former judge of the Canadian Supreme Court considered that the Canadian heritage of two legal systems—the British and the French—stimulates the judges to keep multiculturalism alive. Finally, an ‘evolutionary’ aspect in the Supreme Court’s decision-making, including the citation of cases from other Commonwealth jurisdictions, is considered natural in light of the Court’s contribution to the further development of the common law.74 (iii) US Supreme Court In the US legal system, the judicial approach to non-binding foreign legal sources is a much more controversial topic than in the United Kingdom and Canada. Indeed, the use of foreign law in judicial decision-making, in particular at the level of the US Supreme Court, has led to heated debate. 71 I Binnie, ‘Foreign Sources: Searching for Enlightenment or a Fig Leaf?’ (London, July 2010). 72 K Makin, ‘Justice Ian Binnie’s exit interview’, Globe and Mail (Toronto), 23 September 2011. 73 The correctness of this assumption seems to be confirmed by M Gelter and MM Siems, ‘Language, Legal Origins, and Culture before the Courts: Cross-Citations between Supreme Courts in Europe’ (2013) 21 Supreme Court Economic Review (forthcoming) 30–31 and 40, available at ssrn.com/abstract=1719183. 74 See below, IIIB.

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Critics of the judicial recourse to non-binding foreign law in the United States usually focus on the absence of authority of foreign law to bring about constitutional change in the US legal system. Within the US Supreme Court, Justice Antonin Scalia is most often identified as a representative of this opposition.75 He has argued that international law which has not been integrated into the national legal system should not be used as an interpretive tool, since this practice would mean bypassing the normal process of integration of international law in the domestic legal system. Justice Scalia has further argued that there is no useful purpose to the use of comparative law or international opinion in the process of interpreting one’s national law.76 As a result of this negative portrayal, the legislative authorities in several US states have introduced a prohibition to the courts in these states to consider non-binding foreign law when deciding cases.77 However, proponents of the recourse to comparative law usually do not claim that foreign law should give the decisive arguments for constitutional change. Instead, those in favour of the study of non-binding foreign law emphasise the lessons which can be learnt regarding the meaning of specific concepts. Several justices of the US Supreme Court belong to this second group. An interviewed judge emphasised that constitutional provisions in other countries are not binding on the US Supreme Court. Nonetheless, this judge considered that the fact that people can read about the law of foreign countries makes it relevant for use in legal cases. According to this judge, references to foreign law might be used in the reasoning of judgments if this helps to clarify the argument. The judge mentioned the example of cases concerning questions of federalism. It has been observed that resemblances exist between the use of the principles of subsidiarity and proportionality in the United States and the European Union.78 Given these resemblances, it might be helpful if the US Supreme Court points out when it uses these principles in judicial interpretation. Foreign law might also help in convincing others to accept the judicial argument. However, this judge is not sure about this second statement. Hence, it seems that this judge’s aim in citing foreign law is related to a desire to be clear rather than a desire to be persuasive through comparative legal arguments. In light of these views of the judges concerning the role of non-binding foreign law in judicial decision-making, it is significant to note how the discussions about the role of public international law and comparative law have become intertwined in the US debate. In a public lecture, Justice 75

See Chapter 4, IIB. A Scalia, A Matter of Interpretation: Federal Courts and the Law (A Gutmann (ed), Princeton, NJ, Princeton University Press, 1997). See also Chapter 4, IIB. 77 ‘Bans on Courts’ Use of Sharia/International Law: Pennsylvania Bill Introduced’, Gavel to Gavel, 28 November 2011, available at gaveltogavel.us/site/2011/11/28/bans-on-court-useof-shariainternational-law-pennsylvania-bill-introduced. 78 See Chapter 4, IIA. 76

156 The Use of Foreign Law in Judicial Decision-Making Stephen Breyer has enumerated several ways in which international and comparative law have had an impact on his professional life, for example by way of the awareness of relevant sources for the reflection in domestic cases or in the form of exchanges with foreign judges on institutional issues. He made the following general observation: For one thing, my description blurs the differences between what my law professors used to call comparative law and public international law. That refusal to distinguish (at least for present purposes) may simply reflect reality. The commercial law of various States, for example, has become close to a single, unified body of law, in part through the work of uniform state law commissioners, in part through a pattern of similar judicial responses to similar problems, in part because of the work of intermediate judicial institutions such as federal bankruptcy courts, in part because the interstate nature of commercial contracts means that judges in different states apply each other’s law. Formally speaking, state law is state law. But practically speaking, much of that law is national, if not international in scope. Analogous developments internationally, including the development of regional or specialised international legal bodies, also tend to produce cross-country results that resemble each other more and more, exhibiting common, if not universal, principles in various legal areas.79

This observation seems to put the controversy in the US debate in perspective. Justice Breyer emphasises the overlap between the substance of legal sources, rather than the formal authority which these sources have in a specific context. Furthermore, when considering the actual approaches developed by judges concerning the reference to comparative law, the differences between the US judges seem not as big as is often suggested. The opponents of the citation of non-binding foreign legal sources might express an interest to learn about foreign law as such,80 while supporters of the use of foreign law downplay the role played by cited foreign legal sources as arguments in the decisions in concrete cases. Why then has the debate in the United States developed in the way that it has? Justice Breyer has suggested that political interests related to the judicial recourse to foreign law lie at the heart of the controversy in the US debate.81 He has further pointed out that the use of foreign law took place in cases which were already controversial because of their subject matter, for example cases regarding homosexual relationships82 or the death penalty.83 Therefore, critics of the use of foreign 79 S Breyer, ‘The Supreme Court and the New International Law’ (American Society of International Law, Washington, DC, 4 April 2003). 80 See Chapter 4, II, concerning Justice Scalia’s participation in international exchanges. 81 S Breyer, ‘The Court and Foreign Law’ (Rostov Lecture on International Affairs, Johns Hopkins University Paul H Nitze School of Advanced International Studies, 31 March 2010). See JJ Holland, ‘Justice Breyer Says Debate over Foreign Law is Irrelevant’, United States Supreme Court Monitor, 2 April 2010, available at www.law.com/jsp/scm/PubArticleSCM. jsp?id=1202447364424. 82 Bowers v Hardwick, 478 US 186 (1986); Lawrence v Texas, 539 US 558 (2003). 83 Atkins v Virginia, 536 US 304 (2002); Roper v Simmons, 543 US 551 (2005).

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law might be subject to what psychologists call ‘displacement’: if you cannot blame A—here: the US courts—then blame B—here: the foreign courts cited.84 Legal scholars in the United States have identified other reasons which can account for the controversy as well. Some scholars have advanced that the strong resistance voiced by Supreme Court Justice Scalia, in judicial opinions and in public lectures, has had an impact on the public opinion regarding the judicial use of foreign law.85 It has also been argued that xenophobia has grown in the United States, starting with the invasion of Iraq in 2003, and has negatively impacted the public opinion with regard to the search for foreign inspiration in judicial decision-making.86 Furthermore, the controversy in the United States concerning the judicial use of foreign law can be connected with a divide between the judicial and academic cultures, on the one hand, and the public opinion, on the other hand.87 In the American judicial and academic cultures, it is accepted by some that international and foreign law can be taken into account in the deciding of cases by the courts.88 However, in the public opinion, fed by political views, the recourse to foreign law is not accepted. Interestingly, academic publications might have added to the controversy, since some legal scholars have not taken neutral standpoints but have expressed their personal ideological alignment in the debate.89 Finally, in order to explain why the same controversy has not arisen elsewhere, an interviewed judge of the US Supreme Court suggested several reasons. First, people in Europe have lived closer together for a long time than people in the United States. This argument suggests that cross-cultural influences are more natural in the interaction between people in Europe than in the United States. Secondly, national courts in Europe do not have the same visibility as the US Supreme Court. This argument reflects the idea that courts which are more visible in the public debate, such as the US Supreme Court and also the CJEU and the ECtHR, will be criticised more often for their decisions and their functioning. Criticism of the ECtHR, focusing on

84

Breyer, ‘The Court and Foreign Law’ (n 81). VC Jackson, Constitutional Engagement in a Transnational Era (Oxford, Oxford University Press, 2009). 86 M Rosenfeld, Principle or Ideology? A Comparativist Perspective on the US Controversy over Supreme Court Citations to Foreign Authorities, Cardozo Legal Studies Research Paper No 213 (2008), available at ssrn.com/abstract=1081854. See also below, IIB. 87 SG Calabresi, ‘“A Shining City on a Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law’ (2006) 86 Boston University Law Review 1335, 1336–37. 88 Notable exceptions are Supreme Court Justice Antonin Scalia and Court of Appeals Judge and legal theorist Richard Posner. See Jackson, Constitutional Engagement (n 85) 8. 89 Rosenfeld, Principle or Ideology? (n 86) 28, classifying Richard Posner’s views as close to those of Justice Scalia, and Vicki Jackson’s views as close to those of Justice Kennedy. 85

158 The Use of Foreign Law in Judicial Decision-Making its supposedly non-democratic character, corroborates this idea.90 Another interviewed judge advanced an argument based on the history of judicial review in the United States and in the world. This judge explained that the US Supreme Court was one of the first courts in which constitutional review was developed. When other countries established constitutional courts, many looked to the United States for inspiration. Only when these courts had developed their case law did it become a practice for US judges to consider the judgments of these constitutional courts elsewhere in the world. People in the United States had, or have, to get used to this. (iv) French Highest Courts In continental Europe, discussion about the use of non-binding foreign legal sources in judicial decision-making is of a more recent date than in the Anglo-Saxon countries. According to a French judge, the important question is how judges make use of comparative law, that is, as a determining argument or only as a supporting argument for their decisions. The judge mentioned the late Lord Bingham’s view that there is no need for the domestic law as an intermediary. However, according to this French judge, in the French legal system comparative law can always only be a supporting argument. Moreover, the judge felt that many judges do not consider comparative legal arguments to be necessary elements of judicial decisionmaking. Still, this judge thought that a substantive group of judges feel that it is important to know what is happening in the world. Foreign law traditionally played only a minor role in the development of French law. However, it seems that in recent years this role has grown, for example in the field of administrative law.91 Comparative legal research formed part, for example, of the report prepared by the Conseil d’Etat’s legislative section in 2010 concerning the legislative Bill on the prohibition of the burqa, a loose garment covering the face and body which is worn by certain Muslim women.92 Interestingly, it seems that a development has taken place in this respect. The Council’s prior advice concerning headscarves at school, issued in 1989, did not contain any references to foreign law.93 In the deciding of administrative cases, the judicial section of the Conseil d’Etat seems to approve of the use of comparative law, too.

90 See, eg B Çah, A Koch and N Bruch, The Legitimacy of the European Court of Human Rights: The View from the Ground (Strasbourg, 2 May 2011), available at ecthrproject.files. wordpress.com/2011/04/ecthrlegitimacyreport.pdf. See also Chapter 4, IIB. 91 F Melleray (ed), L’argument de droit comparé en droit administratif français (Brussels, Bruylant, 2007); C Mialot, ‘L’utilisation du droit comparé par le Conseil d’Etat, un changement dans la fabrique du droit’ (2010) AJDA: L’actualité juridique droit administratif 1462. 92 Mialot, ‘L’utilisation du droit comparé’ (n 91). See also below, IIA, concerning the comparative research conducted at the Conseil constitutionnel with regard to this topic. 93 Ibid.

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However, a study of the case law of the administrative court has revealed that foreign legal sources have featured almost exclusively as supporting arguments, and only in an exceptional case as the main argument for the judicial decision.94 Arguments from comparative law further are accepted as useful in the deliberations of the Conseil constitutionnel. According to an interviewed judge, the reason for this is related to the subject matter of cases dealt with by the Council. The Conseil constitutionnel decides on the interpretation of fundamental principles which have equivalents in other legal systems. Therefore, there is a basis for comparison. The interviewed judge considered that this ‘point universel’ in constitutional cases can strengthen the reasoning of judgments. The interpretation of the principle of equality, for example, will have more authority when support for the interpretation given by the national judge can be found in other legal systems. The universality of certain fundamental principles thus gives reason to try and bring constitutional interpretations of these principles closer together. Interestingly, an interviewed judge observed that the general approach to judging in France is changing. Judges are no longer focused on the legal norm and its application but more on categories of factual situations (‘catégories de situations de fait’), and they appreciate the possibility to learn about the manner in which a specific category was handled in other legal systems. Hence, this change has an effect on the role of comparative law in judicial decision-making. An interviewed judge was of the opinion that debate on the basis of foreign ideas and experiences is most necessary in the highest national courts. According to the judge, these courts will have to deal more often than the lower courts with cases in which comparative law can be useful. A former judge of the Cour de cassation considered that foreign case law is used by French judges for a better understanding of the law, not as an argument to justify a specific decision. The study of foreign law makes it possible to see the impact of a specific legal solution elsewhere. A judge in the French Conseil d’Etat portrayed the argument from comparative law as the scaffolding which is visible when a building is being constructed. This scaffolding is essential in order to be able to construct the building. However, once the construction works are finished, the scaffolding is taken away and only the building remains visible to the onlooker. In the same way, the argument from comparative law might be an essential element in the deliberations of a French court, and nonetheless not be distinguishable in the reasoning of the court’s decision. One judge indicated awareness of the controversy in the US debate on the use of comparative law in judicial decision-making. This judge expressed

94

See below, IIB.

160 The Use of Foreign Law in Judicial Decision-Making particular interest in the case law of the US Supreme Court addressing the authority of international treaties which have not been ratified by the state. (v) Dutch Highest Courts References to foreign case law and legal doctrines in principle do not occur in the published judgments of the Dutch Hoge Raad and are relatively scarce in the opinions of the Advocates-General. Most interviewed judges expressed the fear that the discussion of foreign judgments in their decisions would give rise to criticism concerning the legal systems to which reference is made: why look at one system, but not at another? References to foreign judgments would thus risk weakening the authority of the Hoge Raad’s judgments. Indeed, the discussion of foreign judgments would not fit the Dutch tradition of judgments, which might no longer be apodictic but are still reasoned more ‘economically’ than is the style in the common law tradition.95 Moreover, citations of case law already are rare in the Dutch Court’s case law, as no formal system of precedent exists in the Netherlands.96 In this context, it is felt by the judges that the citation of foreign judgments in the decisions of the Hoge Raad would be a bridge too far. The conclusions of the Advocates-General, which are published alongside the Court’s judgments and sometimes contain a discussion of arguments from foreign law, are considered sufficient to give more insight into the background for the Court’s reasoning.97 In this way, it is made clear to some extent which foreign sources have played a role in the Court’s decision-making. Judges in the Hoge Raad mentioned that sometimes a specific approach to the use of non-binding foreign legal sources is dictated by the subject matter of the case at hand. In extradition cases, for example, the startingpoint is mutual trust between states. The Court, because of this mutual trust, will try to grant requests for extradition to the largest possible extent. This involves the comparison of the national law and the law of the foreign legal system which sent the request for extradition. The study of the law of a foreign legal system here is an essential element in the judgment of the case at hand and the consistency of the interpretation of legal provisions is an important aim of judicial decision-making. At the Raad van State, the influence of comparative law is considered to be more significant in the Council’s function as an advisory body on legislation than in its function as the highest general administrative court in the Netherlands. An interviewed judge observed that in judging one has to limit 95 96 97

See Chapter 4, IIID. See Chapter 2, IIIB. See Chapter 4, IIID.

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one’s focus to what matters for the case at hand. In that specific context, comparative law generally only has limited usefulness. Why would one choose to be guided by the German Bundesverfassungsgericht, which functions under a different system regarding the implementation of international law? Or by French law which is much less direct than the equivalent Dutch law? The judge indicated that, if a choice has to be made, the judges in the Raad van State prefer to engage in a vertical comparison, for example, with the CJEU or the ECtHR, rather than in a horizontal comparison with courts in other national jurisdictions. The European courts are considered to be the ‘cassation judges’ for EU law and the ECHR, which makes it interesting and legitimate for the Raad van State to pay attention to the case law of these courts. Concerning the horizontal comparison with other national courts, the particularities of national legal systems and procedural laws are thought to form an obstacle for a fruitful study of the judgments of these foreign courts. The judge made an exception for the Grondwettelijk Hof van België (Constitutional Court of Belgium), previously the Arbitragehof (Court of Arbitration).98 This Court is considered to function in a similar system of implementation of international law as the Raad van State. This provides a basis for legal comparison, for example, concerning the concept of the ‘reading together’ of fundamental rights provisions. In the ‘Jezus redt’ case, for example, articles 6 and 7 of the Dutch Constitution, concerning the freedom of religion and the freedom of expression, were read together with articles 9 and 10 of the ECHR, concerning the same fundamental freedoms.99

C. Conclusion The interviewed judges made a distinction between the use of binding international law and non-binding foreign legal sources in the decision-making of their highest courts. Binding sources need to be considered, whereas non-binding sources do not need to—and according to some judges should not—be taken into account in the deciding of domestic cases. However, several judges pointed out that the judicial treatment of these two types of foreign sources is becoming increasingly similar in the globalised legal context, in which legal regimes have become intertwined and the substance of legal norms overlaps. In case of such a close relationship between legal regimes, the consideration of non-binding foreign law might be very useful in order for courts to keep up with and contribute to the development of the law across national legal borders.

98 99

See www.const-court.be. ‘Jezus redt’ ABRvS, 14 July 2010, LJN BN1135. See further below, IIA.

162 The Use of Foreign Law in Judicial Decision-Making Interestingly, the ECHR and the case law of the ECtHR were mentioned as influential legal sources by judges of all of the examined highest courts. This impact was felt by judges in Europe, who are formally bound to apply the ECHR, as well as by judges across the Atlantic Ocean, who are not formally bound by the Convention. However, a notable difference can be identified between the generally open approach of the Canadian judges, who have welcomed foreign inspiration in the interpreting of the Canadian Charter of Rights and Freedoms, and US judges, whose use of non-binding foreign legal sources has become a bone of contention inside and outside of the Court. In general, the trend of globalisation seems to have mitigated the effects of the traditional dualist approach towards international law in the common law systems. Judges admit to paying attention to international treaty law, in particular in the field of human rights law, even if the studied international treaties do not have domestic effect.100 The intellectual perspective of judges seems to play a role with regard to the status accorded to international and comparative legal sources in judicial decision-making in the examined European jurisdictions, too. Concerning binding international and supranational law, Dutch judges seem to be more open to accept the influence of these sources, in particular the ECHR and EU law, than their counterparts in the United Kingdom. The approach of the French judges has evolved from a position of resistance to a position of engagement101 with these legal sources. The study of non-binding foreign sources is developing in the continental-European courts. This practice seems to be more natural for the judges of the UK Supreme Court and the Supreme Court of Canada, who feel the responsibility to contribute to the further development of the common law and in this respect are used to studying the case law of courts in Commonwealth legal systems. It can be concluded that judges acknowledge the impact of binding international law on judicial decision-making in the present-day context. Moreover, judges with an interest to learn about non-binding foreign legal sources can be found in all of the examined highest courts. However, the judges generally consider that the usefulness of comparative law for judicial decision-making should not be overrated. Judicial statistics seem to corroborate this view, as citations of comparative sources occur in relatively few cases.102 Still, to the extent that comparative legal sources are not included in the reasoning of judgments, it is unclear which role these sources play in the deciding of cases. More generally, the use of foreign law in specific cases judged by the examined highest courts deserves further scrutiny in order to fully understand the changed role and working methods of the 100

See also Waters, ‘Creeping Monism’ (n 2) 633. Cp Jackson, Constitutional Engagement (n 85) and Chapter 2, IIIA. 102 See further below, II. Concerning the highest courts in European countries, see also Gelter and Siems, ‘Language, Legal Origins, and Culture before the Courts’ (n 73). 101

Use of Foreign Law: Examples from Case Law 163 highest national courts in the globalised legal context. This topic will be addressed next.

II. USE OF FOREIGN LAW: EXAMPLES FROM CASE LAW

When international or comparative law is used in individual cases, what does this use consist of? In the interviews, judges mentioned examples from the case law of their courts which came to mind to them when asked this question. These examples will be presented here, and put in perspective in light of information found in other sources, in particular other academic analyses concerning the case law of the examined courts. This way, it will be possible to gain a clearer view on what it means when judges ‘engage’103 with foreign law.

A. Use of International Law Binding international legal norms sometimes need to be interpreted by the highest national courts in order to decide specific cases. This can concern the interpretation of international law as such, or the interpretation of domestic legal rules in light of relevant international legal norms. When conducting this task of interpretation, the highest courts might use legal sources of which the status in the domestic legal system cannot be established unambiguously on the basis of the domestic rules of reception of international law. Such sources can be customary international law (ius cogens), the judgments of international or supranational courts, or the decisions of international organisations. In the interviews, the judges of the examined highest courts mentioned examples of cases in which their courts had made use of this kind of sources. The judges clarified the decision-making process in these cases and gave their personal views on the approach taken by their court. Through these reflections of the judges, more insight can be gained into the international legal sources which they use and the perceived relevance of these sources in the judicial decisionmaking of the highest courts. (i) UK Supreme Court Concerning international legal sources, the British judges emphasised in particular the frequency of references to the ECHR and EU law in the decision-making of the Supreme Court. While acknowledging the significance

103

Cp Jackson, Constitutional Engagement (n 85) and Chapter 2, IIIA.

164 The Use of Foreign Law in Judicial Decision-Making of these sources and of the case law of the ECtHR and CJEU, the judges also expressed criticism of the judgments of the Strasbourg and Luxembourg Courts, notably concerning the quality of the judicial reasoning of these courts.104 We have seen already that the formal hierarchical submission of the highest national courts to the international and supranational courts is not necessarily decisive for the approach of the national courts to the interpretation of treaty norms in domestic cases.105 In this light, critical views of British judges concerning the interpretation of international norms have manifested themselves in the reasoning of judgments in cases which have come before them. Such criticism has occurred in particular with regard to interpretations given by the ECtHR. Interestingly, the Strasbourg Court has responded by citing the argumentation of the British judges in relevant cases, and by adapting its case law when the arguments of the national judges were sufficiently persuasive. A very clear example of this ‘judicial dialogue’ can be found in Cooper v United Kingdom.106 The legal question in this case, which concerned the conformity of the British court-martial proceedings to the requirements of Article 6(1) ECHR, had been considered by the ECtHR already in the case of Morris v United Kingdom.107 In the subsequent case of R v Boyd and others, judged by the House of Lords, Lord Bingham considered with regard to the ECtHR’s judgment: It goes without saying that any judgment of the European Court commands great respect, and section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account, as it routinely does. There were, however, a large number of points in issue in Morris v United Kingdom, and it seems clear that on this particular aspect the European Court did not receive all the help which was needed to form a conclusion.108

Lord Bingham discussed the legal aspects which were at stake and specified at which points a different assessment was justified. A further refining of the legal argumentation was presented by Lord Rodger, who indicated in his opinion which relevant factual aspects had not been brought to the attention of the ECtHR in the Morris case.109 In its judgment in Cooper v United Kingdom, the ECtHR cited large parts of these opinions of Lord Bingham and Lord Rodger in its description of the relevant domestic law and practice.110 Furthermore, the Strasbourg Court explicitly adopted the

104

See further below, IIIA, concerning the style of judgments. See Chapter 4, IIB. 106 Cooper v United Kingdom [2003] XII ECHR (ECtHR, 16 December 2003). 107 Morris v United Kingdom [2002] I ECHR 2002 (ECtHR, 26 February 2002). 108 R v Boyd and others [2002] UKHL 31 (18 July 2002), [2002] 3 All ER 1074. 109 Ibid paras 20–101. 110 Cooper v United Kingdom [2003] XII ECHR (ECtHR, 16 December 2003) paras 66–76. 105

Use of Foreign Law: Examples from Case Law 165 findings of the Law Lords at several points in its judgment.111 The Court then overturned its earlier condemnation of the court-martial proceedings in the Morris case, in which a violation of Article 6(1) ECHR had been established, and rejected the appeal in Cooper.112 Another example of judicial dialogue with the Strasbourg Court can be found in the Supreme Court’s judgment in R v Horncastle,113 which contained a question to the ECtHR to reconsider its judgment in Al-Khawaja v United Kingdom concerning UK hearsay law in criminal cases.114 In a Grand Chamber Judgment, handed down in December 2011, the ECtHR indeed reconsidered its earlier judgment and nuanced it by holding that the contested domestic legal provisions, allowing hearsay evidence under specific circumstances, did not automatically constitute a breach of Article 6 ECHR.115 These examples make visible that the British judges actively engage with transnational legal sources in the field of human rights law and initiate transnational judicial communication, in the sense of a ‘vertical dialogue’, when they deem this appropriate. Moreover, the judicial competence created by the HRA 1998, allowing the British courts to declare domestic laws incompatible with ECHR rights, has empowered the judges of the Supreme Court vis-à-vis the domestic government. The UK government has shown its respect for the judicial branch and for the rights protected by the HRA 1998 by taking action to lift the incompatibilities found by the courts.116 However, concerning the application of the ECHR in the United Kingdom, it should further be noted that the Convention and the ECtHR’s case law are at the core of current debates concerning fundamental rights protection at the domestic level. The British Government has expressed criticism of the Strasbourg Court, and in some cases has refused to implement judgments. An example of this concerns the ECtHR’s judgment in Hirst v United Kingdom. In this case, the Strasbourg Court’s Grand Chamber judged that a blanket ban on the voting rights of prisoners in the United Kingdom constituted a violation of Article 1 of Protocol 3 to the ECHR.117 The failure of the British Government to implement this judgment, even after repeated calls of the Council of Europe’s Committee of Ministers, led to a second judgment of the ECtHR in 2010 in Greens and MT v United Kingdom. In this judgment,

111

Ibid paras 118, 125 and 130. Ibid para 134. 113 R v Horncastle [2009] UKSC 14, [2010] 2 AC 373. 114 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, 20 January 2009). 115 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, 15 December 2011). 116 See the reports published by the Joint Committee on Human Rights at www.parliament. uk/jchr. 117 Hirst v United Kingdom (No 2) [2005] ECHR 681 (ECtHR, 6 October 2005). 112

166 The Use of Foreign Law in Judicial Decision-Making the ECtHR reiterated the finding of a violation of Article 1 to protocol 3 of the ECHR and imposed a deadline of six months after the judgment became final to introduce new UK legislation.118 The unwillingness displayed by the British Government in this case to follow up on an ECtHR judgment is exemplary of the criticism of the Strasbourg Court which has arisen in other countries as well, in particular in the Netherlands.119 Partly in light of this criticism, reforms of the ECtHR were agreed on, during the Council of Europe Conference in Brighton in April 2012, with the aim to enhance the effectiveness and legitimacy of the Strasbourg Court.120 This debate shows that the Supreme Court is still considered to be the most significant guardian and developer of the law in the United Kingdom, even under the increasing effects of globalisation on judicial decision-making in the national legal system. (ii) Supreme Court of Canada In Canada, the Supreme Court does not engage in transnational judicial communication as much as the UK Supreme Court does with the ECtHR. However, the Canadian Supreme Court does face similar questions as other highest courts concerning the interpretation of international treaty law in the deciding of domestic cases. As a general rule, the Canadian courts will try to interpret domestic legal rules in conformity with the applicable international law. This principle is often cited in court decisions. In a published article, Justice LeBel mentioned the Supreme Court’s judgment in Daniels v White and The Queen as an illustration: [T]his is a case for the application of the rule of construction that Parliament is not presumed to legislate in breach of a treaty or in any manner inconsistent with the comity of nations and the established rules of international law.121

Rather than a rule for establishing legislative intent, this principle of conforming interpretation represents a judicial policy developed to prevent violations by the state of its obligations under international law.122 Justice LeBel pointed out that the developed practice of the Canadian courts has been confirmed and clarified by the Supreme Court in its National Corn Growers judgment.123

118

Greens and MT v United Kingdom [2010] ECHR 1826 (ECtHR, 23 November 2010). See Chapter 4, IB. 120 ‘Brighton Declaration on ECHR Reform Adopted’ (Brighton, 20 April 2012), available at www.justice.gov.uk/news/features/brighton-declaration-on-echr-reform-adopted. 121 Daniels v White and The Queen [1968] SCR 517, para 541 (Pigeon J), cited by LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 7. 122 LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 7. 123 National Corn Growers [1990] 2 SCR 1324. 119

Use of Foreign Law: Examples from Case Law 167 To establish the meaning of treaty provisions, the Supreme Court has developed new methods of interpretation. The Court will not only use rules for the interpretation of statutes, but also rules for the interpretation of the treaty in question. An illustration of this practice can be found in the Court’s judgment in Pushpanathan v Canada (Minister of Citizenship and Immigration).124 Mr Pushpanathan, who claimed the status of refugee in Canada, had been criminally convicted and been given an eight-year prison sentence for a drugs crime. The Supreme Court had to interpret Article 1F(c) of the Refugee Convention in order to determine whether this conviction qualified as an act ‘contrary to the purposes and principles of the United Nations’. In that case, Mr Pushpanathan would not be a ‘refugee’ in terms of this Convention. The Supreme Court applied the interpretation rules of Articles 31 and 32 of the Vienna Convention on the Law of Treaties to establish the meaning of the provision of the Refugee Convention in the domestic context.125 Another example from the Supreme Court’s case law, mentioned by an interviewed judge, concerned the interpretation of domestic legal norms in light of international law, in this case customary international law. In Suresh v Canada (Minister of Citizenship and Immigration),126 the Canadian authorities wanted to extradite a Sri Lankan immigrant who allegedly posed a security risk. However, when sent back to Sri Lanka, this person would run the risk of being tortured. The Supreme Court considered the following with regard to the role of the international perspective: We have examined the argument that from the perspective of Canadian law to deport a Convention refugee to torture violates the principles of fundamental justice. However, that does not end the inquiry. The provisions of the Immigration Act dealing with deportation must be considered in their international context: Pushpanathan, supra. Similarly, the principles of fundamental justice expressed in s 7 of the Charter and the limits on rights that may be justified under s 1 of the Charter cannot be considered in isolation from the international norms which they reflect. A complete understanding of the Act and the Charter requires consideration of the international perspective. International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.127

124

Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982. Ibid para 51. 126 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3. See also LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 13–14. 127 [2002] 1 SCR 3, paras 59–60. 125

168 The Use of Foreign Law in Judicial Decision-Making The Supreme Court then investigated whether the prohibition of torture is a peremptory norm or ius cogens, an argument which was advanced by the intervener, Amnesty International. On this point, the Court made the following observation: Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from.128

The Court continued with the interpretation of the conflicting international legal instruments which were at issue in this case, namely, the International Convention on Civil and Political Rights (ICCPR), the UN Convention Against Torture (CAT) and the Refugee Convention. Furthermore, the Court took into account the position taken by the UN Committee Against Torture, and relevant judgments of the Supreme Court of Israel (sitting as the High Court of Justice) and the House of Lords rejecting the use of torture as a legitimate tool in the fight against terrorism. The Supreme Court concluded: that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s 7 of the Charter.129

In applying this view to the Immigration Act, the Supreme Court cited the opinions of Lord Hoffmann and Lord Slynn in the British Rehman case, which concerned a similar legal question.130 Balancing all arguments thus collected, the Supreme Court of Canada pronounced as its judgment that torture constitutes a violation of the Charter, but that an exceptional case might occur in which extradition of an individual to a country where this person faces the risk of torture could be allowed under s 53(1)(b) of the Immigration Act.131 It seems that international and comparative law were used in this case in order to clarify the possible meanings of the domestic law. The study of the relevant international legal norms also enabled the Court to ensure the consistency of Canadian practice with international law, and in this way to confirm the respect of the Canadian authorities for international law.132 The acknowledgment of the possible occurrence of exceptional cases in 128

Ibid para 65. Ibid para 75. 130 Ibid paras 76–77 and 87. See Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2001] 3 WLR 877. 131 Ibid para 131. 132 See in this respect also Mugesera v Canada (Minister of Citizenship and Integration) [2005] 2 SCR 100, discussed by LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 12–13. 129

Use of Foreign Law: Examples from Case Law 169 the future fits the common law tradition of leaving space for the further development of the law. Other examples of international legal sources used in the Supreme Court’s decision-making were mentioned in the interviews. In genocide cases, the case law of international tribunals is taken into account. In Mugesera v Canada (Minister of Citizenship and Integration),133 for example, the Supreme Court considered relevant judgments of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). However, the prestige of an international court is a matter of consideration in this respect. An interviewed judge pointed out that the Supreme Court of Canada does not believe in the UN Committee of Human Rights and refuses to cite decisions of this Committee. The judge specified that the Court remains of the opinion that the Committee’s decisions are of very poor quality. (iii) US Supreme Court Concerning the United States, an interviewed judge of the Supreme Court recalled that the status of international law, more particularly the status of the judgments of the International Court of Justice (ICJ), was discussed in the Medellin case, decided by the Supreme Court in 2008.134 The Supreme Court’s judgment in this case highlights the contested status of international legal sources in the domestic legal system of the United States. The case is also exemplary of the politicised nature of the Supreme Court’s decisionmaking. This is illustrated in particular by the discussion in this case concerning the competences of the government and the courts to decide on the authority of non-domestic legal sources in the national legal system. The facts of the case concerned the failing of US officials to announce to a Mexican citizen, suspected of murder, his right to see diplomatic counsel. The suspect, Medellin, was sentenced to death in the United States. The ICJ, in the Avena case, then judged that the failure to announce their rights to 52 Mexican nationals suspected of criminal offences, including Medellin, constituted a violation of the Vienna Convention on Consular Relations by the United States.135 President George W Bush issued a Memorandum stating that the United States would ‘discharge its international obligations ... by having State courts give effect to the decision’.136 However, the Texas Court of Criminal Appeals dismissed Medellin’s second habeas corpus appeal, 133

Ibid. Medellin v Texas, 552 US 491 (2008). See also Chapter 4, IIIA. 135 Avena and Other Mexican Nationals (Mexico v United States) [2004] ICJ Rep 12 (ICJ, 31 March 2004). Medellin was one of 51 Mexican nationals involved in this case who had not been informed of their Vienna Convention rights. 136 GW Bush, ‘Memorandum to the Attorney General’ (25 February 2008); cited in the Opinion of the Court (delivered by Chief Justice Roberts). 134

170 The Use of Foreign Law in Judicial Decision-Making considering that only binding federal law could set aside limitations in the State’s law regarding successive habeas corpus applications.137 The legal question brought to the US Supreme Court in this case concerned the status in the national legal system of ICJ judgments interpreting international treaty provisions: did the Avena judgment have automatic domestic legal effect in the United States? The majority in the US Supreme Court held that the ICJ’s judgment did not constitute automatically binding domestic law. The Court decided that the competence to decide on the binding character of international legal sources belongs to the State Department.138 However, several justices did not agree with this judgment. Justice Breyer, who was joined by Justices Souter and Ginsburg, wrote a dissent based on the idea underlying the famous Marbury v Madison judgment on constitutional review:139 if the United States has accepted the jurisdiction of the ICJ, then the case law of this court is binding on the American courts.140 Another example mentioned in the interviews concerned the interpretation of domestic law implementing international treaty norms. This topic was addressed by the Supreme Court in a case concerning the envisaged extradition of a person to Ethiopia. It had to be decided whether this alien, who had assisted or participated in persecution under duress, could be eligible for asylum in the United States.141 The petitioner referred among other things to ‘concepts of international law’ to argue that the notion of ‘persecution’ used in the Immigration and Nationality Act included the requirement of ‘moral blameworthiness’.142 In the discussion of the arguments put forward by both sides, Justice Kennedy, writing for the majority in the US Supreme Court, considered: The persecutor bar in this case ... was enacted as part of the Refugee Act of 1980. Unlike the [Displaced Persons Act of 1948], which was enacted to address not just the post war refugee problem but also the Holocaust and its horror, the Refugee Act was designed to provide a general rule for the ongoing treatment of all refugees and displaced persons. As this Court has twice recognized, ‘“one of Congress’ primary purposes” in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan 31, 1967, 19 UST 6224, TIA S 6577 (1968)’, as well as the ‘United Nations Convention Relating to the Status of Refugees, 189 UNTS 150 (July 28, 1951), reprinted in 19 UST 6259’. Aguirre-Aguirre, 526 US, at 427 (quoting Cardoza-Fonseca, 480 US, at 436–437).143

137 138 139 140 141 142 143

Ex parte Medellin, 223 SW 3rd 315. 552 US 491 (2008). Marbury v Madison, 5 US (1 Cranch) 137 (1803). 552 US 491 (2008) (Breyer J, dissenting). Negusie v Holder, 555 US 511 (2009). Ibid para II-B. Ibid.

Use of Foreign Law: Examples from Case Law 171 This consideration reflects an effort to interpret the domestic law in conformity with international legal norms. The Supreme Court considered that the Board of Immigration Appeals had misapplied an earlier precedent of the Court and because of this mistaken application had not taken into account the alien’s motivation and intent when determining whether the alien had assisted in persecution.144 The case was remanded for further proceedings. (iv) French Highest Courts When now returning our attention to the highest national courts in European legal systems, the predominance of the judicial dialogue with the European courts again catches the eye. In the interviews with French judges, the interpretation of binding international and supranational legal sources was illustrated in particular with regard to the Conseil constitutionnel. The growing impact of the ECHR and EU law in the French national legal system has had a significant effect on the Council’s working methods. We already saw that, in its case law, this constitutional court has established that its competence is limited to the review of parliamentary acts in the light of the Constitution. The conformity of these acts to international treaty law formally is not tested.145 However, an interviewed judge indicated that, notwithstanding this case law, the members of the Council have developed the practice to check their interpretation of fundamental constitutional rights in light of the interpretation given by the ECtHR to human rights protected by the ECHR. In recent years, the deliberations in the Conseil constitutionnel increasingly often included a discussion of the scrutinised parliamentary act in light of the ECHR. This way, the Council seeks to guarantee coherency with the ECHR when establishing the meaning of constitutional rights protected in France, in particular the provisions of the Déclaration des droits de l’homme et du citoyen of 1789. An example given by the interviewed member of the Council concerned a case in which the meaning of the right of appeal in French administrative law cases was investigated in light of the right of access to justice. A research of the online database of the Council’s decisions, conducted in April 2013, revealed that most of the references to the ECHR (abbreviated in French as CEDH) occurred in cases concerning a ‘question prioritaire de constitutionnalité’ (preliminary question of constitutionality), which can be submitted to the Council since 2010.146 The reasons for the change of practice of the Conseil constitutionnel are of a mixed legal and political nature. In order to prevent cases from going up

144 145 146

Ibid. Loi relative à l’interruption volontaire de la grossesse CC 15 January 1975, Recueil 19. See www.conseil-constitutionnel.fr. Concerning the QPC procedure, see Chapter 3, IIA.

172 The Use of Foreign Law in Judicial Decision-Making to Strasbourg, the members of the Conseil constitutionnel consider it desirable that legislation is checked for its conformity to the ECHR. Moreover, this review benefits the guarantee of the unity of the law and legal certainty in the French legal system, in which the other highest courts and the trial courts, in relevant cases, consider the conformity of legal provisions to the ECHR.147 According to the interviewed judge, in principle there is no reason to give a different interpretation from the ECtHR as concerns the meaning of fundamental rights. Therefore, if the national judge wants to adopt a different solution, he should justify this. Such a justification might be found in the specificity of the national legal system, for example, as concerns the right to religious freedom and the French principle of ‘laïcité’ (secularism). In this light, mention can be made of the recent high-profile case concerning the constitutionality of a legislative act prohibiting the concealment of one’s face in public. This law was aimed in particular at the prohibition of the burqa, a garment worn by certain Muslim women. The awareness of the members of the Conseil constitutionnel of the ECtHR’s case law can be deduced from the presentation of relevant materials in the ‘dossier documentaire’ which is prepared by the Council’s documentation service. In the aforementioned case, this file contained extracts from four judgments of the ECtHR.148 The idea of coherence of transnational judicial interpretations thus has induced an ‘enrichment’ of the deliberations of the constitutional judge. However, this awareness is not shown in the reasoning of the Council’s decisions, which will only contain the result of the conformed interpretation. In case of the predominance of a specific French constitutional principle, such as the principle of ‘laïcité’, the Council will only present an argument based on this principle. The decision will not explicitly address the interpretation given by the ECtHR to the right of religious freedom. The interviewed judges of the Cour de cassation and the Conseil d’Etat indicated that the ECHR and EU law form an integral part of the set of legal norms used by these highest courts in the judgment of cases.149 The frequent use of arguments based on the ECHR by counsel can be connected with the impossibility, until the constitutional reform of 2008, of invoking the conflict of enacted legislation with the Constitution of 1958. Through the review of legislative acts in light of the ECHR, the French courts could ensure the protection of the fundamental rights of citizens. This practice 147 P Steinmetz, ‘Contribution à la conférence mondiale sur la justice constitutionnelle’ (Capetown, 23–24 January 2009), available at www.venice.coe.int/WCCJ/Papers/FRA_ Steinmetz_F.pdf. See also O Dutheillet de Lamothe, ‘Constitutional Court Judges’ Roundtable’ (2005) 3 International Journal of Constitutional Law 550. 148 Loi interdisant la dissimulation du visage dans l’espace public CC 7 October 2010. See www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/2010-613DCdoc.pdf. 149 See above, IA.

Use of Foreign Law: Examples from Case Law 173 resembles the use of the ECHR by the highest courts in the Netherlands, which will be described next. Importantly, the ECHR is considered to set minimum standards for the French legal system. Therefore, the Convention rights ‘are not meant to supplant municipal law but to complement and remedy its shortcomings’.150 The French judges have developed a practice of applying national legal rules in conformity with the Convention’s requirements, where possible. A combined application of national and ECHR norms is chosen where the national law falls short of giving the required level of protection according to the ECHR. Finally, examples can be found in the case law of the French courts in which national legal provisions which clearly went against the ECHR were not applied in the cases at hand.151 (v) Dutch Highest Courts In the Netherlands, as in the United Kingdom and in France, the judicial engagement with international legal sources also concerns mostly EU law and the ECHR. The case law of the ECtHR and CJEU is usually followed by the Dutch highest courts. The ECHR is considered to be the most influential international treaty in the decision-making of the Criminal Law Chamber of the Hoge Raad.152 As an example, several judges of the Hoge Raad mentioned the implementation of the Strasbourg Court’s Salduz judgment in the Dutch law. This judgment, given by the ECtHR in a case against Turkey, concerned the right of a defendant to have access to a lawyer when subjected to police interrogations.153 The interpretation of this judgment for the Dutch context took place in three cases judged by the Hoge Raad in 2009. In the Court’s Annual Report 2009–2010, it is described how this implementation came about.154 For the Dutch judges, the question had arisen as to what the ECtHR meant by ‘access to a lawyer’. Did this mean that a lawyer could be present during the police interrogations or would it be sufficient if the defendant was given the opportunity to consult a lawyer before the interrogations? In the Annual Report, it is stated that the first suitable case which occurred was used by the Procurator-General’s Office to bring this question before the Hoge Raad. Advocate-General Knigge presented an analysis of the consequences of the Salduz judgment in his advice issued in February 2009. The Hoge Raad gave its decision in three judgments of 30 June 2009. The Court cited Article 6(1) of the ECHR and 150 Bjorge, ‘National Supreme Courts’ (n 10) 21. See also B Stirn, D Fairgrieve and M Guyomar (eds), Droits et libertés en France et au Royaume-Uni (Paris, Odile Jacob, 2006). 151 Bjorge, ‘National Supreme Courts’ (n 10) 22–23. 152 Hoge Raad, Verslag over 2009–2010, 26. 153 See above, IA. The ECtHR clarified this judgment in Panovits v Cyprus App no 4268/04 (ECtHR, 11 December 2008). 154 Hoge Raad, Verslag over 2009–2010, 27.

174 The Use of Foreign Law in Judicial Decision-Making the most important considerations of the ECtHR in the Salduz judgment. The Court then interpreted the ECtHR’s judgment, holding that the right to consult a lawyer did not include the right to the presence of a lawyer during the police interrogations. An exception was made for juvenile suspects, who according to the Court have a right to the assistance of a lawyer or counsellor both before and during the police interrogations.155 References to the case law of the ECtHR occur regularly in the judgments of the Raad van State as well. An example is the ‘Jezus redt’ case, which concerned the appeal against an injunction to remove white tiles from a house, which together formed the words ‘Jesus saves’.156 The appellant argued that the injunction constituted a violation of Articles 9 and 10 ECHR, concerning the right to freedom of religion and the right to freedom of expression, and articles 6 and 7 of the Dutch Constitution, concerning the same rights. In its decision on the justified limitations to the right protected by Article 9 ECHR, the Raad van State cited the ECtHR’s judgment in Vergos v Greece.157 The administrative judge used this judgment, as well as its own case law, to support its decision that a limitation of the protected right was justified in the case at hand when balanced against the interests of protecting the public order and the rights and freedoms of others.158 The ECHR also plays an important role in asylum cases. When deciding cases in this field, the Raad van State will take account of relevant judgments of the ECtHR concerning the country to which the asylum seeker might be sent. A judge of the Council mentioned the recent case law of the Strasbourg Court in which it was held that asylum seekers could not be sent back to Greece on the basis of the EU Dublin II Agreement, because the detention and living conditions as well as deficiencies in the asylum procedure in Greece constituted violations of ECHR provisions.159 Concerning the application of EU law, a judge of the Raad van State observed that exemplary reasoning can be found in the Council’s decision in the Westland case. The question at issue was whether the annulment of a local regulation concerning the opening hours of retail outlets constituted an obstruction of the free movement of services.160 In its decision, the Raad van State summarised the argumentation of the applicants with regard to the applicable EU law and then conducted a thorough analysis of the relevant sources, also taking account of the case law of the CJEU.161 The judgment illustrates the Raad van State’s recognition of the authority of EU 155

Salduz plea HR 30 June 2009, NJ 2009, 349, paras 2.5–2.6. ‘Jezus redt’ ABRvS 14 July 2010, LJN BN1135. 157 Vergos v Greece App no 65501/01 (ECtHR, 24 September 2004). 158 ABRvS 14 July 2010, LJN BN1135, para 2.12.4. 159 MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011). 160 Westland v State of the Netherlands (Minister of Economic Affairs) ABRvS 2 March 2011, LJN BP6327, para 2.11. 161 Ibid. 156

Use of Foreign Law: Examples from Case Law 175 law and the case law of the CJEU. It also clarifies how the national administrative court acts as an EU judge at the domestic level. Yet, the application of EU law in administrative cases is not always easy. Since the entry into force of the Lisbon Treaty, with which the Charter of Fundamental Rights of the EU acquired the same binding force as the EU treaties, the application of the Charter has become a significant matter of concern for the Raad van State. The application of EU law has further led to discussion in specific cases. An example which was mentioned concerned the ‘coffee-shop case’.162 In this case, the municipality of Maastricht had issued a regulation obliging coffee shops—meaning: places where soft drugs are sold in accordance with the legal provisions of Dutch law regulating this sale—to refuse access to non-residents of the Netherlands. The question had to be answered whether this regulation could be upheld in light of EU law. The Raad van State, faced with this question, asked the CJEU to clarify whether a regulation such as the local regulation of the municipality of Maastricht fell within the scope of EU law, in particular the free movement of persons and services or the prohibition of discrimination of Articles 12 and 18 EC Treaty, and, if this was the case, whether the regulation was appropriate and proportional in light of these provisions. The CJEU judged that the regulation constituted a limitation of the free movement of services, which was justified in light of the interest to fight drug tourism and nuisance related to this drug tourism.163 An interviewed judge further pointed out an interesting example of discussion of EU law by the Raad van State, which occurred on the basis of the appellants’ arguments in Mothers of Srebrenica Citizens’ Association v Minister of Defence.164 This case concerned an administrative appeal against the decision of the District Court of Amsterdam to uphold the refusal of the Minister of Defence to disclose documents concerning the UN Protection Force in the former Yugoslavia. As summarised in the judgment, counsel for the appellants noted: that the Court of Justice of the European Communities (ECJ) in its order of 13 July 1990, C 2/88 Imm, Zwartveld and Others (www.eur-lex.europa.eu), considered that the privileges and immunities of the European Communities are purely

162

Coffeeshop ‘Easy Going’ ABRvS 8 April 2009, LJN BI0424. Case C-137/09 Josemans v Maastricht (16 December 2010). 164 Mothers of Srebrenica Citizens’ Association v Minister of Defence ABRvS 3 March 2010, LJN BL6245. Concerning this case, see also below, IIB. It can further be noted that a civil claim in Mothers of Srebrenica Citizens’ Association and others v State of the Netherlands and the United Nations was judged by the District Court of The Hague on 10 July 2008 (LJN BD6796) and on appeal by the Court of Appeal of The Hague on 30 March 2010 (LJN BL8979). On 13 April 2012, the Civil Chamber of the Hoge Raad dismissed the appeal in cassation which had been lodged against the latter judgment (LJN BW1999). An English translation of this judgment is available through the Dutch Supreme Court’s webpages at www.rechtspraak.nl. 163

176 The Use of Foreign Law in Judicial Decision-Making functional in that they are intended to prevent interference with the functioning and independence of the Communities, and that the ECJ in its judgment of 3 September 2008 in joined cases C 402/05 P and C 415/05 P, Kadi and Al Barakaat v Council and Commission (www.curia.europa.eu), reviewed a regulation of the Council of the European Union and annulled it, despite the fact that the regulation gives effect to obligations under the UN Charter.165

An interviewed judge of the Raad van State explained that the assignment of judges to this case had taken place with an eye to the expertise required to answer this question. However, in the Council’s judgment the initial question in light of the European Court’s Kadi judgment was left aside. Having stated that the assessment of the confidentiality of the requested documents falls outside of the competence of the courts,166 the Raad van State considered the following with regard to the argument based on EU law: The Zwartveld order gives no reason to draw a different conclusion. In that order, the ECJ considered itself competent to investigate, at the request of a Dutch court, whether the European Commission’s invocation of the privileges and immunities of the European Communities laid down in the Protocol on the Privileges and Immunities of the European Communities (‘EC Protocol’) was justified by the need to avoid any interference with the functioning and independence of the Communities. That the ECJ is competent to render an opinion on the EC Protocol in such proceedings does not mean that the national court is competent to render an opinion on the same matter. Besides, in the present case it is not the EC Protocol but rather the UN Convention on Privileges and Immunities that is at issue. The Administrative Jurisdiction Division’s status vis-à-vis the UN Convention on Privileges and Immunities is not the same as the ECJ’s status relative to the EC Protocol. Consequently, the ECJ’s considerations in the Zwartveld order cannot be applied by analogy to the present case.167

A judge of the Raad van State pointed out that the Council might have a different policy than courts in other EU Member States concerning the submission of preliminary references to the CJEU. An example concerned the Cuijk case,168 in which the Raad van State considered that an ‘acte clair’ existed, while knowing that Greek and Lithuanian courts had referred a question to the CJEU.169 The judge observed, however, that this case

165

Ibid para 2. See in more detail below, IIB. 167 ABRvS 3 March 2010, LJN BL6245, para 2. 168 Milieuvereniging Land van Cuijk v Raad van de gemeente Cuijk ABRvS 29 December 2010, LJN BO9187. 169 Reference of the Lietuvos Vyriausiasis Administracinis Teismas, 15 June 2010, CJEU, Case C-295/10, and Symvoulio tis Epikrateias, 25 January 2010, CJEU, Case C-43/10, cited in Jurisprudentie Milieurecht, 26 March 2011, no 3, 161. The two cases have been decided by the CJEU: Case C-43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and others v Ypourgos Perivallontos, Chorotaxias kai Dimosion ergon and others (11 September 2012); Case C-295/10 Genovaite˙ Valciukien ˇ e˙ and others v Pakruojo rajono savivaldybe˙ and others (22 September 2011). 166

Use of Foreign Law: Examples from Case Law 177 seemed to be unique in the Council’s case law. This judge further recalled the Greenpeace case, in which the Raad van State had referred a question to the CJEU with the knowledge that the French judge had already referred the same question. After an answer to the French question had been issued, the Raad van State withdrew its question. The judge explained that the submission of the question had been an expression of the loyalty principle underlying the EU legal order. After all, the point of departure in the EU context is that the law is applied in the same way in all Member States. A variety of other international legal sources were mentioned during the interviews. Differences can be noticed between the chambers of the Hoge Raad concerning the sources which are used in the decision-making on specific topic matters which contain an international aspect. In civil cases, the relevant international conventions mainly concern the solution of conflicts of law and uniform commercial law. Treaties which were mentioned by the judges are the Hague Convention on the Civil Aspects of International Child Abduction, the Vienna Convention on the Law of Treaties and the Convention on the Contract for the International Carriage of Goods by Road (CMR). In the Criminal Law Chamber, many cases involving international treaty law concern extradition. The transfer of sentenced persons is regulated by the Law on the Transfer of the Execution of Sentences (Wet overdracht tenuitvoerlegging strafvonnissen, or WOTS). Another treaty which was mentioned several times is the UN Convention Against Torture. In tax law cases, relevant sources mentioned by the judges include bilateral treaties concerning the avoidance of double taxation. For the interpretation of these treaties, use is made of the Vienna Convention on the Law of Treaties as well as of the OECD Model Tax Convention on Income and on Capital (MTC). A judge specified that in the case law, it occurs also that mention is made of the official commentary of the OECD regarding the MTC. A search of the published judgments of the Hoge Raad since 1999 yielded almost 150 cases in which the OECD Model Convention was cited, in most cases in the opinion of the Advocate-General. As a special example of treaty interpretation, several of the judges mentioned the Benelux cooperation with Belgium and Luxembourg, to which the Netherlands is a party.170 The analysis in the previous pages reveals that the use of international legal sources by the highest courts in the United Kingdom, Canada, the United States, France and the Netherlands has become a common practice in the daily business of judging cases. The examples given by the interviewed judges provide illustrations of the specific practices of each court. Based on this overview, it appears that the approaches of judges in the examined courts differ on the basis of their functioning in a dualist or a

170

See Chapter 4, IA.

178 The Use of Foreign Law in Judicial Decision-Making monist legal system, and on the basis of the initiative taken by courts to participate in vertical judicial dialogue with international or supranational courts. Furthermore, differences in the approaches of the highest courts seem to be related to the membership of states in influential regional legal orders, such as the European Union or the Council of Europe. Besides these differences, the judicial practices of the highest courts also have similarities, mainly concerning the development of methods of interpretation concerning international legal norms. More generally, the views and recounted experiences of the judges reveal awareness of the increasingly global context of the functioning of highest courts, and of the implications of this trend for the decision-making in domestic cases.

B. Use of Comparative Law When interpreting domestic legal provisions, the highest national courts will sometimes take account of legislation and case law from other jurisdictions, or of international opinion. The examples given by the interviewed judges give insight into the circumstances under which judges find it useful to refer to non-binding foreign law in the deciding of domestic cases, and clarify how comparative law is used in the judicial deliberations and reasoning. (i) UK Supreme Court Some examples given by the British judges shed more light on the way in which they use non-binding foreign case law in their decision-making. The Reynolds case, first, concerned the liability for libel in the light of qualified privilege for political events. The question to be answered by the House of Lords was if a libellous statement of fact made in the course of political discussion is free from liability if published in good faith or if liability may also arise if, having regard to the source of the information and all the circumstances, it was not in the public interest for the newspaper to have published the information as it did.171 In this judgment, explicit mention was made of solutions adopted in other countries. In particular, attention was paid to the United States, where the Sullivan case172 is the leading authority on the topic at hand. The overview of foreign case law in the judgment of the UK Supreme Court further included an analysis of Canadian, Indian, Australian, South African and New Zealand case law.173 The study of comparative sources in this specific case seemed to be connected to the wish to 171 172 173

Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127. New York Times Co v Sullivan, 376 US 254 (1964). [2001] 2 AC 127, 199 (Lord Nicholls) and 209 (Lord Steyn).

Use of Foreign Law: Examples from Case Law 179 show that no uniform or non-controversial case law existed in the area in question. Lord Nicholls stated that: Before turning to the issues raised by this appeal mention must be made, necessarily briefly, of the solutions adopted in certain other countries. As is to be expected, the solutions are not uniform. As also to be expected, the chosen solutions have not lacked critics in their own countries.174

Another example is the Jewish Free School case, which concerned the admission policy of a religious school.175 The school’s policy was to give preference to those whose status as Jews is recognised by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (the OCR), meaning ‘those children whose mothers satisfy the matrilineal test or who are Jews by conversion by Orthodox standards’.176 The question to be answered by the Supreme Court was whether this policy constituted a violation of section 1 of the Race Relations Act 1976. In deciding this case, the nine judges on the special panel of the UK Supreme Court paid attention, inter alia, to the case law of the Supreme Court of Israel.177 Several members of the panel indicated that extra comparative legal research was done at the request of the judges themselves. Extra research was also demanded by the judges in a number of cases concerning the freezing of assets of suspected terrorists. In the Supreme Court’s judgment of 27 January 2010, reference is made to the measures adopted in Australia and New Zealand regarding the implementation of the applicable UN Resolutions.178 The relevant European judgment in Kadi v Council of the European Union179 is analysed in the light of Canadian and US case law. An interviewed judge indicated to have suggested looking at Canadian case law, as this might give guidance on how to judge the case. However, the cited foreign case law was considered not to be decisive for the case at hand.180 In a more general sense, the British judges considered that citations of foreign law mostly occur in human rights cases and in private law cases. In human rights cases, the judges hope to find guidance in case law concerning the interpretation of the ECHR or concerning comparable instruments for

174

[2001] 2 AC 127, 198. R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728. 176 Ibid para 5 (Lord Phillips). 177 Ibid para 159 (Lord Hope), where reference is made to No’ar K’halacha v Ministry of Education, HCJ 1067/08, 6 August 2009. 178 Her Majesty’s Treasury v Mohammed Jabar Ahmed and others (FC) [2010] UKSC 2, [2010] 2 AC 534, para 50 (Lord Hope, with whom Lord Walker and Lady Hale agree). See also this judgment at paras 120–22 (Lord Phillips), in which two New Zealand cases put forward by counsel for the defendant are analysed. 179 Case C-402/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-06351. 180 [2010] UKSC 2, para 71 (Lord Hope). 175

180 The Use of Foreign Law in Judicial Decision-Making human rights protection. In contract and tort cases, the shared background with other common law legal systems is thought to make legal comparison often useful. One of the judges indicated that in particular tort law is still relatively untouched by statute law and thus leaves room for comparison with other common law jurisdictions. Appreciation was voiced for Australian case law in particular, which was mentioned by several judges for its high quality. Australian case law was further mentioned as a source of inspiration for the judgment of asylum and refugee cases. When looking at the published judgments of the British judges in recent years, citations to Australian judgments can indeed be found in a number of cases. An inventory of the Law Reports of 2008 reveals that in 37 published cases of the Law Lords in which foreign law was cited, reference to Australian judgments was made in nine cases, yielding a total of 11 Australian judgments cited in the judicial opinions.181 The use of foreign law is less frequent in criminal cases. However, several judges indicated a personal interest in French or German case law. A judge remembered having looked at French case law in a case concerning the balancing of the anonymity of parties and the interest of media coverage in the light of the right to a fair trial and the principle of open justice. Another judge, speaking about the same legal question, mentioned having searched German law and having made inquiries with personal contacts in Germany in order to find useful information, which then might give rise to a question to counsel to base arguments on this information. In the decision given on 27 January 2010, Lord Rodger, who delivered the unanimous judgment, remarked that: Unfortunately, no real additional help with the question of anonymity orders can be obtained from examining the practices of courts in Europe when issuing judgments. In all the principal systems, at least, steps can apparently now be taken, where appropriate, to anonymise reports of matrimonial disputes and disputes relating to children. Apart from that, however, what is striking is the variety of approaches.182

This observation was followed by an overview of French, Italian and German case law.183 The responses of the interviewed judges and the reasoning in the judgment suggest that the comparative analysis in this case was carried out with the aim to get a clearer insight into the state of the domestic law.

181 Most noteworthy among these judgments were OBG Ltd v Allan [2007] UKHL 21, [2008] AC 1 concerning actions for economic loss in English law (four Australian judgments cited), and Sempra Metals Ltd v IRC [2007] UKHL 34, [2008] 1 AC 561 concerning the calculation of interest in a case regarding restitution for unjust enrichment (five Australian judgments cited). 182 [2010] UKSC 1, [2010] 2 WLR 325, para 53. 183 Ibid paras 54–57. The judgment also contains a careful analysis of relevant ECtHR case law concerning arts 8 and 10 of the ECHR; see Ibid paras 22–52.

Use of Foreign Law: Examples from Case Law 181 The observed variety of approaches can be considered a justifying argument for the decision taken, which stays very close to the facts of this specific case. Furthermore, the foreign case law gives an indication of factors to be taken into account when balancing the right of privacy against the rights of the press. In this way, the knowledge of the practices in other legal systems seems to have helped the judges to mark out the relevant questions during the process of discovery. Finally, the British judges sometimes take account of ‘soft law’ instruments which are considered to have a certain prestige. References to the Principles of European Contract Law (PECL), developed by the Lando Commission, can be found in a small number of judgments of the Law Lords and the UK Supreme Court. A search of BAILII yielded five judgments given between 2001 and 2009.184 However, these references appear to have no impact on the interpretation of domestic law. They are used as guidance for the interpretation of European law, such as the Unfair Contract Terms Directive,185 or to highlight the differences between the English and the continental legal traditions. This latter argument transpires, for example, from the opinion of Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd, in which the judge observed that the PECL and related instruments ‘reflect the French philosophy of contractual interpretation, which is altogether different from that of English law’.186 An interviewed judge further considered that taking into account the PECL or the Draft Common Frame of Reference (DCFR) developed at the initiative of the European Commission would not make sense, because this source is too vague and academic in comparison with the domestic law. This judge considered that the DCFR might develop into an optional system in Europe ‘as an ever closer union’.187 However, it is this judge’s belief that practical hindrances to commerce will remain as a result of efficiency considerations and costliness. The judge therefore considered that the DCFR can be no more than an inspiration for the UK Supreme Court. (ii) Supreme Court of Canada In Canada, foreign law plays an important role in the judicial decisionmaking in human rights cases. The judges of the Supreme Court of Canada indicated that they will sometimes consult the case law of foreign courts, in particular the ECHR and occasionally also the Constitutional Court of

184

See www.bailii.org (search term ‘Principles of European Contract Law’). Directive 93/13/EEC, which was interpreted in Director General of Fair Trading v First National Bank [2001] UKHL 52, [2001] 2 All ER (Comm) 1000, paras 36–37 and 45. 186 Chartbrook Ltd v Persimmon Homes Ltd and others [2009] UKHL 38, [2009] 4 All ER 677, para 39. 187 Preambles to the EC Treaty and the EU Treaty. 185

182 The Use of Foreign Law in Judicial Decision-Making South Africa, the German Federal Constitutional Court and the Supreme Court of Israel. References to the US courts were frequent during the first years of the application of the Charter. In particular, the case law of the US Supreme Court was taken into account by the Canadian judges.188 This is less so these days, as the US Supreme Court is considered to be moving in a different direction from most Western courts and the ECtHR. The UK Supreme Court (formerly the Appellate Committee of the House of Lords) has become more relevant since more human rights cases are being judged there. According to former Justice Bastarache, international and comparative legal sources are cited by the Supreme Court of Canada in human rights cases ‘to demonstrate established or emerging patterns informing human rights jurisprudence throughout the world’.189 Concerning the Supreme Court’s judicial decision-making in Charter cases, Justice Binnie has described the Court’s developed practice as ‘a question of evolution’: In the early years, the Dickson court did make broad, sweeping pronouncements because they were laying the groundwork … As you work through all these different situations …, you get down to much shorter strokes and much more difficult calls … Now, we are much more into a phase of tying up loose ends and adding precision to the general principles that were enunciated … I think the legal landscape has changed and the court has evolved with the landscape.190

In the interviews, the judges confirmed that they do not look at foreign sources for solutions, but for ideas. They considered that the transplanting of solutions from one legal system into another one is often not possible because of contextual differences. A judge illustrated this with regard to the topic of access to legal advice. In the United States, the test for granting legal advice only comes up when a person is detained. Before detention, there is no right to counsel. In Canada, however, this difference does not exist. Therefore, one should be careful to transplant the US test as such into Canadian law. After all, a consequence might be, for example, that the right to counsel should be granted to any Canadian who is stopped by the police for speeding. Justice LeBel has expressed a similar view in a published article, in which he pointed out that the research of foreign law can inform the Supreme Court about possible interpretations of the Canadian Charter of Rights and Freedoms, but without providing clear-cut solutions.191

188 For a quantitative corroboration of these observations, see G Gentili, ‘Canada: Protecting Rights in a “Worldwide Rights Culture”: An Empirical Study of the Use of Foreign Precedents by the Supreme Court of Canada (1982–2010)’ in T Groppi and MC Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart Publishing, 2013). 189 Bastarache, ‘The Globalisation of the Law’ (n 59) 44. 190 Makin, ‘Justice Ian Binnie’s exit interview’ (n 72). 191 LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 20.

Use of Foreign Law: Examples from Case Law 183 This view is corroborated by the Supreme Court’s case law. If an interpretation of a fundamental right is chosen which differs from the studied foreign case law, then the Supreme Court’s judgment will contain a discussion of the choice for this different approach. An example of this can be found in a case concerning the constitutional guarantee of the freedom of association. In this case, Lavigne v Ontario Public Service Employees Union,192 the Supreme Court considered case law of the US Supreme Court and the ECtHR. In its judgment, the Supreme Court considered that: this Court must exercise caution in adopting any decision, however compelling, of a foreign jurisdiction. This Court has consistently stated that even although it may undoubtedly benefit from the experience of American and other courts in adjudicating constitutional issues, it is by no means bound by that experience or the jurisprudence it generated. The uniqueness of the Canadian Charter of Rights and Freedoms flows not only from the distinctive structure of the Charter as compared to the American Bill of Rights but also from the special features of the Canadian cultural, historical, social and political tradition.193

In United States v Burns, which was also mentioned in the interviews, the Supreme Court of Canada looked at international opinion and at the experiences of other states.194 This case concerned the requested extradition of two Canadians to the United States, where these persons could be sentenced to death. In this case, the Canadian court eventually decided that it was unconstitutional under the Charter to extradite the persons in question if no assurances were given that the death sentence would not be imposed or carried out.195 This decision was reached partly on the basis of international sources. It overturned earlier judgments of the Canadian Supreme Court, in which the extradition of US residents was not prevented.196 The reasoning of the Burns decision contained the following reference to international experience and foreign practices: International experience, particularly in the past decade, has shown the death penalty to raise many complex problems of both a philosophical and pragmatic nature. While there remains the fundamental issue of whether the state can ever be justified in taking the life of a human being within its power, the present debate goes beyond arguments over the effectiveness of deterrence and the appropriateness of vengeance and retribution. It strikes at the very ability of the criminal justice system to obtain a uniformly correct result even where death hangs in the balance.

192

Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211. Ibid paras 256–57; LeBel and Gonsalves, ‘Comments on the Integration of International Law’ (n 19) 20. 194 United States v Burns [2001] 1 SCR 283. 195 Ibid paras 143–44. 196 Kindler v Canada (Minister of Justice) [1991] 2 SCR 779; Reference re Ng Extradition (Canada) [1991] 2 SCR 858. 193

184 The Use of Foreign Law in Judicial Decision-Making International experience thus confirms the validity of concerns expressed in the Canadian Parliament about capital punishment. It also shows that a rule requiring that assurances be obtained prior to extradition in death penalty cases not only accords with Canada’s principled advocacy on the international level, but is also consistent with the practice of other countries with whom Canada generally invites comparison, apart from the retentionist jurisdictions in the United States.197

Interestingly, foreign factual experience concerning potential wrongful convictions was invoked in the Burns judgment as one of the arguments justifying the Court’s reversal of its Kindler and Ng jurisprudence: The outcome of this appeal turns on an appreciation of the principles of fundamental justice, which in turn are derived from the basic tenets of our legal system. These basic tenets have not changed since 1991 when Kindler and Ng were decided, but their application in particular cases (the ‘balancing process’) must take note of factual developments in Canada and in relevant foreign jurisdictions. When principles of fundamental justice as established and understood in Canada are applied to these factual developments, many of which are of farreaching importance in death penalty cases, a balance which tilted in favour of extradition without assurances in Kindler and Ng now tilts against the constitutionality of such an outcome. For these reasons, the appeal is dismissed.198

Furthermore, the Supreme Court cited case law of the ECtHR (Soering v United Kingdom), the South African Constitutional Court (S v Makwanyane), and the English Court of Appeal.199 Justice Binnie has specified the role of foreign sources in this case: I do not suggest that the outcome in the Burns case depended on this review of foreign sources but it assisted us in clarifying our own approach, and assured the legal community and the broader public in Canada that all potential sources of enlightenment had been taken into consideration.200

International sources, as well as US Supreme Court judgments, were also discussed in the high-profile case of Omar Khadr, which concerned a Canadian detainee at Guantanamo.201 According to Justice Binnie, these foreign sources were ‘important building blocks’ in the Supreme Court’s decision to order the Canadian government to disclose the records of the interrogation of Khadr by Canadian security agents.202 Beside human rights cases, foreign law is used by the Supreme Court of Canada in other fields of law, too. In particular, there is a significant exchange with other common law jurisdictions. The judges find it legitimate 197 198 199 200 201 202

[2001] 1 SCR 283, paras 127–28. Ibid para 144. Ibid paras 53, 67, 112–16, 119 and 137. Binnie, ‘Foreign Sources’ (n 71). Canada (Justice) v Khadr [2008] 2 SCR 125. Binnie, ‘Foreign Sources’ (n 71).

Use of Foreign Law: Examples from Case Law 185 to look at other Commonwealth countries because of their shared tradition, and because of the aim of working together for the development of the common law. Traditionally, references by the UK Supreme Court and other Commonwealth jurisdictions were much used in contract and tort cases. A recent example which was mentioned concerned the law of defamation.203 According to the interviewed judges, more reference is made nowadays to Australia and New Zealand than to the United Kingdom. The highest courts in these countries are perceived to be more open to change than the British courts. Concerning references to the United States, an interviewed judge pointed out that US commercial law and corporate law is very influential in the Supreme Court of Canada. An explanation is that the Canadian law in this area was mostly inspired by the existing US law. This inspiration existed also with regard to labour law, which was developed in the 1930s and 1940s on the basis of US law. However, the current labour law in this field is quite different in the two legal systems. Finally, US influences are not so strong in contract and tort cases. A judge observed that comparison with the United States is difficult because of the amount and the variety of case law. In the province of Québec, French law is influential, in particular the case law of the Cour de cassation. Furthermore, Swiss law is sometimes considered, since it influenced the title on private international law in the Québec Civil Code. A difference with common law cases is that in Québec cases references are made more often to authors and legal doctrine. A judge mentioned that references to common law jurisdictions also occur in criminal cases, for example concerning security and terrorism.204 However, the Criminal Code is specific to Canada and, therefore, the use of foreign law in this area is more limited than in private law cases. Further examples of the use of foreign law can be found, inter alia, in cases in the field of intellectual property law. The Supreme Court of Canada has had to decide cases concerning the patenting of life forms and concerning trademarks. In these cases, the judges have examined other legal systems and checked whether the interpretation of the Court was consonant with the law in these other legal systems. This occurred, for example in the case of Harvard College v Canada.205 Justice Bastarache, in a published article, has expressed the opinion that the increased influence of foreign law has led to a change in the decisionmaking process of the Supreme Court of Canada. He feels that the Supreme

203

Grant v Torstar Corp [2009] SCR 640. See above, IIA, concerning the reference to the British Rehman judgment in Pushpanathan. 205 Harvard College v Canada (Commissioner of Patents) [2002] 4 SCR 45. See also Bastarache, ‘The Globalisation of the Law’ (n 59) 44. 204

186 The Use of Foreign Law in Judicial Decision-Making Court is induced to opt for interpretations of domestic legal provisions which would enable the harmonisation of legislation across national borders. The judge refers to the minority opinion in Harvard College v Canada, in which the judges reviewed non-binding foreign law with an aim at ensuring consistency between domestic law and the law of comparable foreign jurisdictions.206 However, some fundamental dilemmas were identified by the interviewed judges as well. When asked, a judge expressed hesitation concerning the use of foreign legal sources in cases which touch upon moral values. In this respect, the judge agreed with US Supreme Court Justice Scalia’s argument that different societies hold different moral values. The judge thought that the Supreme Court of Canada should be reluctant to cite other countries, for example in abortion cases, as comparative sources would have less persuasive weight in this context. As an example, the Morgentaler case was mentioned, which concerned the constitutionality of provincial legislation concerning the prohibition of the performance of abortions outside hospitals.207 The judge observed that the use of comparative law is more appropriate in cases where social values rather than moral values are at stake. For example, in cases concerning the freedom of expression it can be useful to learn about the way in which social values on this issue were assessed by the courts in other jurisdictions. Justice Binnie has, indeed, emphasised that the usefulness of comparative law in judicial decision-making is connected with the existence of shared societal practices and values. Referring to existing criminal policies in Canada, he has pointed out that an international judicial discourse could be helpful in light of ‘shared methods of fighting crime and shared values concerning the kind of society we want to live in’.208 However, the narcotic ‘sniffer dog’ cases209 were mentioned by Justice Binnie as an example of cases in which foreign law turned out to be ‘a burden rather than a benefit’. In previous cases concerning search and seizure, the Supreme Court of Canada had been influenced in its decisions by US ideas regarding this topic. However, in the sniffer dog cases a different question was at issue than in the United States, where the US Supreme Court had to choose between giving the highest level of constitutional protection or no constitutional protection at all.210 Therefore, the Supreme Court of Canada chose to discuss the relevant US judgments but presented these as ‘opposing viewpoints that usefully added balance to [the judges’] discussion of the controversy’.211

206 207 208 209 210 211

Ibid. R v Morgentaler [1993] 3 SCR 463. Binnie, ‘Foreign Sources’ (n 71). R v Kang-Brown [2008] 1 SCR 456; R v AM [2008] 1 SCR 569. Binnie, ‘Foreign Sources’ (n 71). Ibid.

Use of Foreign Law: Examples from Case Law 187 (iii) US Supreme Court As described in the first section of this chapter, the use of comparative law in judicial decision-making has resulted in a controversy in the United States. This controversy concerns the allegedly binding status granted to arguments from comparative law in the judgments of US courts. The reference to comparative law as a source of information in judicial decisions can be considered to constitute a separate issue. Indeed, it seems that the courts in the United States for a long time have considered this ‘inspirational’ function of comparative law as non-problematic. Research shows that the citation of non-binding foreign law constitutes a longstanding practice of the US courts.212 The interviewed judges, too, did not have difficulties to find examples of cases in which reference was made to comparative law by the US Supreme Court. An interviewed judge mentioned that foreign references played a role in cases judged by the Supreme Court in the 1970s concerning women’s rights. As an example, this judge mentioned Reed v Reed, which concerned the contestation by the mother of a deceased child of a statute preferring males over females in the administration of an estate.213 Counsel in this case cited case law of the German Bundesverfassungsgericht to support its argument that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution had been violated. The Supreme Court ruled in favour of the petitioner, in this way acknowledging the constitutional basis for the protection of individuals against discrimination based on gender. In human rights cases, judges have referred to case law of the ECtHR and the Supreme Court of Canada. This occurred, for example, in Nixon v Shrink Missouri Government PAC, concerning the constitutionality of state limitations on contributions to state political candidates in light of the freedom of expression. In his concurring opinion in this case, Justice Breyer observed that a balancing approach, such as the approach used by the ECtHR and the Supreme Court of Canada, should be favoured in complex constitutional cases.214 Arguments based on the ECtHR’s case law also played a role in Lawrence v Texas concerning the constitutionality of 212 SG Calabresi and S Dotson Zimdahl, ‘The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision’ (2005) 47 William and Mary Law Review 743; DA Farber, The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History, UC Berkeley Public Law Research Paper No 954359 (2006), available at ssrn.com/abstract=954359. 213 Reed v Reed, 404 US 71 (1971). 214 Nixon v Shrink Missouri Government PAC, 528 US 377, 403 (2000) (Breyer J, concurring); cited by Calabresi and Zimdahl, ‘The Supreme Court and Foreign Sources of Law’ (n 212) 879. Interestingly, it seems that the use of foreign law is mostly disfavoured with regard to the freedom of expression and the freedom of the press, even by judges and commentators who support the recourse to foreign law in judicial decision-making. See F Schauer, ‘The Exceptional First Amendment’, in M Ignatieff (ed), American Exceptionalism and Human Rights (Princeton, NJ, Princeton University Press, 2005) 29.

188 The Use of Foreign Law in Judicial Decision-Making a state law prohibiting sexual acts between persons of the same sex.215 The Supreme Court felt that it had to reconsider its existing case law. In Bowers v Hardwick, judged in 1986, a Georgia state law prohibiting sodomy had been upheld.216 In the Lawrence judgment, in 2003, reference was made to the ECtHR’s judgment in Dudgeon v United Kingdom. In this case, the Strasbourg Court had found that Northern Irish legislation prohibiting homosexual acts constituted a breach of the right to private life protected by Article 8 ECHR.217 Justice Kennedy delivered the opinion of the US Supreme Court, which contained the following consideration: [A]lmost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v United Kingdom, 45 Eur Ct H R (1981) para 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.218

The Supreme Court, in its judgment, attributed value to the criticism expressed with regard to its Bowers case law. In this respect, Justice Kennedy pointed out that the ECtHR had followed its own Dudgeon jurisprudence rather than the reasoning in Bowers. He also mentioned the information, provided in an amicus curiae brief, about the policies of other nations. Furthermore, the Supreme Court found a convincing argument in the dissenting opinion of Justice Stevens in Bowers. The Court decided to overrule the Bowers precedent, explicitly stating that this judgment ‘was not correct when it was decided, and it is not correct today’.219 In the field of human rights law, legal tradition is a significant factor in the search for foreign inspiration, too. Justice Ginsburg indicated in a public lecture that judgments of the British courts have become more influential in the US Supreme Court’s decision-making since the enactment of the HRA 1998.220 She observed that interest for constitutional conversations in other jurisdictions can and probably will increase in the United States, in particular with regard to lessons to be learnt from other common law 215

Lawrence v Texas, 539 US 558 (2003). Bowers v Hardwick, 478 US 186 (1986). 217 Dudgeon v United Kingdom (1981) Series A no 45 (ECtHR, 22 October 1981). 218 Lawrence v Texas, 539 US 558 (2003), para II. 219 Ibid. 220 R Bader Ginsburg, ‘Judicial Stimulation of Legislative Change: A View from the United States’ (Third Leslie Scarman Lecture, London, 11 February 2010) 4, available at lawcommission.justice.gov.uk/docs/scarman_lecture_110210.pdf. 216

Use of Foreign Law: Examples from Case Law 189 systems. Justice Ginsburg illustrated this point by referring to the Belmarsh judgment of the House of Lords. She cited the observation made by Lord Hoffman in this judgment that torture has traditionally been condemned by the common law, and that ‘many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction’.221 Justice Ginsburg suggested a possible connection with the adoption in 2006 of US legislation banning cruel, inhuman and degrading treatment of detainees in US custody.222 International opinion and the practices of other states, including the United Kingdom, were taken into account by the US Supreme Court in the much-debated case of Roper v Simmons to support the judgment of unconstitutionality of the juvenile death penalty.223 This judgment has become central in the discussion concerning the legitimacy of referring to non-binding foreign law in judicial decision-making. In particular, Justice Scalia’s denunciation, in a dissenting opinion, of the use of comparative elements in the majority judgment delivered by Justice Kennedy has drawn much attention.224 The difference of opinion within the Supreme Court was demonstrated already in previously-decided cases. In his dissenting opinion in Printz v United States, Justice Breyer made a comparison with federal systems existing elsewhere. This comparison was rejected by Justice Scalia, who delivered the opinion of the Court. Making an argument on the basis of US exceptionalism,225 he observed: Justice Breyer’s dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. The Framers were familiar with many federal systems, from classical antiquity down to their own time … The fact is that our federalism is not Europe’s. It is ‘the unique contribution of the Framers to political science and political theory’. United States v Lopez, 514 US 549, 575 (1995) (Kennedy, J, concurring) (citing Friendly, Federalism: A Forward, 86 Yale LJ 1019 (1977)).226

221 A(FC) v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221, para 82 (Lord Hoffman), cited by Ginsburg, ‘Judicial Stimulation of Legislative Change’ (n 220) 5. 222 Ginsburg ‘Judicial Stimulation of Legislative Change’ (n 220) 5, and Department of Defense Appropriations Act 2006 (109th Cong, HR 2863), Pub L No 109–148, para 1003, codified at 42 USC s 2000dd. 223 Roper v Simmons, 543 US 551 (2005). 224 See, eg N Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519. See also Chapter 4, IIB. 225 See I Tyrrell, ‘American Exceptionalism and Uneven Global Integration: Resistance to the Global Society’ in B Mazlish, N Chanda and K Weisbrode (eds), The Paradox of a Global USA (Stanford, CA, Stanford University Press, 2007). 226 Printz v United States, 521 US 898 (1997).

190 The Use of Foreign Law in Judicial Decision-Making It is remarkable that the US debate concerning the use of comparative law has become increasingly polarised over the years, even though the practice of the Supreme Court has not changed significantly. In this respect, Michel Rosenfeld has observed that a shift has occurred in the appreciation of the judicial use of non-binding foreign law between the US Supreme Court’s judgments in Bowers in 1986 and Lawrence in 2003. According to Rosenfeld, differences between the Bowers and Lawrence judgments concern the political context in which the United States was functioning at the time of each decision, the use of foreign citations by conservative or progressive judges, and the reference to either historical foreign sources or contemporary foreign judgments.227 Concerning the methodology applied to the use of comparative law, judges who are in favour of this practice seem to prefer using a vague standard for assessing the usefulness of reference to foreign legal sources in specific cases. Two interviewed judges indicated that non-binding foreign law can be taken into account when it seems appropriate to do so.228 It can further be noted that the US Supreme Court, in Eighth Amendment death penalty cases such as Roper v Simmons, has used an ‘evolving standards of decency test’: foreign law is studied to identify widely held moral standards.229 Criticism of this practice has been that it reduces the study of foreign law to mere ‘nose counting’.230 (iv) French Highest Courts In France, next, arguments from comparative law are regularly used in the deliberations of the Conseil constitutionnel. However, following the French tradition of judicial reasoning, no citations of foreign law and foreign judgments feature in the decisions of the Council. In a published conference contribution, the then-member of the Conseil constitutionnel Olivier Dutheillet de Lamothe gave three examples of cases in which foreign legal sources had informed the Council’s decision-making. In a case concerning the constitutionality of legislation on abortion the Council considered case law from the United States, Germany, Italy and the ECtHR.231 Case law of the German Federal Constitutional Court was also taken into account in a

227

Rosenfeld, Principle or Ideology? (n 86) 24–25. See also above, IB. See further below, IIIA. 229 Cp D Aarons, ‘The Abolitionist’s Dilemma: Establishing the Standards for the Evolving Standards of Decency’ (2008) 6 Pierce Law Review 441. 230 A Stone, ‘Comparativism in Constitutional Interpretation’ (2009) New Zealand Law Review 45. See also G Sitaraman, ‘The Use and Abuse of Foreign Law in Constitutional Interpretation’ (2009) 32 Harvard Journal of Law and Public Policy 653, 681–82. 231 CC 27 June 2001, decision no 2001-446, Recueil 74; Dutheillet de Lamothe, ‘Constitutional Court Judges’ Roundtable’ (n 147) 553. 228

Use of Foreign Law: Examples from Case Law 191 case concerning the independence of university professors.232 Finally, judgments of the CJEU and the German, Spanish, Italian and US highest courts were examined in a case addressing the interpretation of the principle of equality.233 An interviewed member of the Council observed that a useful comparative analysis is possible only when the legal systems which are compared share the same principles, and when they are at the same stage of legal development. This view corroborates the findings of Aharon Barak, the former President of the Supreme Court of Israel, who has published a theoretical analysis of the judicial use of comparative law.234 The French judge considered that a basis for comparison exists, particularly in cases involving human rights, because of the supposed universal element in these rights.235 In the decision-making of the Cour de cassation, too, the use of comparative law is related to the subject matter of cases. A judge pointed out that the Third Civil Law Chamber, for example, deals with environmental law and other issues which do not specifically have a relation with comparative law. The judge considered that comparative legal analysis is reserved for important cases where it is useful to look at foreign law for the decision of the case. An example concerns the deciding of cases about the ‘grands sujets’ (big topics) of the French society, such as same-sex marriage, the adoption of a child by same-sex partners, or the compensation of asbestos victims. Comparative legal studies were commissioned in a number of this type of cases from the Institut de droit comparé Edouard Lambert. An example concerned the legal validity of the marriage of two persons of the same sex by the mayor of a French town. Taking a comparative study into account, the Cour de cassation judged that the marriage could not be declared valid, and that an amendment by the legislator would be required to enable samesex partners to marry.236 As another example, in 2006 the Cour de cassation commissioned comparative research regarding the scope of res judicata. English, German, Italian and Spanish legal sources were consulted to inform the Court’s decision.237 The Cour de cassation overturned a decision of 232 CC 20 January 1984, decision no 83-165, Recueil 30; Dutheillet de Lamothe, ‘Constitutional Court Judges’ Roundtable’ (n 147) 554. 233 CC 29 December 2003, decision no 2003-489, Recueil 480; Dutheillet de Lamothe, ‘Constitutional Court Judges’ Roundtable’ (n 147) 554. 234 A Barak, The Judge in a Democracy (Princeton, NJ, Princeton University Press, 2006) 197–204. 235 See above, IIB. 236 Chapin Cass, 13 March 2007, App no B 05-16.627, judgment no 511. See also M Adams and E Mak, ‘Buitenlands recht in nationale rechtspleging’ (2011) 86 Nederlands Juristenblad 2912; F Ferrand, ‘The French Approach to the Globalisation and Harmonisation of Civil Procedure’ in XE Kramer and CH van Rhee (eds) Civil Litigation in a Globalising World (The Hague, TMC Asser Press, 2012) 354. 237 Institut de Droit Comparé Edouard Lambert, ‘L’étendue de l’autorité de la chose jugée en droit comparé’, available at www.courdecassation.fr/IMG/File/Plen-06-07-07-0410672rapport-definitif-anonymise-annexe-2.pdf; cited by Ferrand, ‘The French Approach’ (n 236), who was one of the researchers who conducted this comparative study.

192 The Use of Foreign Law in Judicial Decision-Making 1994, in this way aligning itself with the English and Spanish case law but diverging from the German and Italian case law.238 Comparative legal research in criminal cases was commissioned by the Cour de cassation in some high-profile cases concerning the classification of the accidental termination of a pregnancy as ‘involuntary homicide’ (‘homicide involontaire’). The cases concerned were the case of a pregnant woman who lost her unborn baby due to a traffic accident,239 and the case of a doctor who accidentally provoked the death of a foetus during a medical proceeding before the delivery.240 The legal question to be answered was if a still-born child under these circumstances should be considered as a human being for legal purposes. An interviewed judge recalled that, to inform their decision-making, the reporting judge (‘conseiller rapporteur’) and the Advocate-General made extensive use of information concerning the way in which this question had been dealt with in other legal systems. It was decided that qualification as a human being is only possible when the child is born alive and able to live after its birth (‘viable’).241 Judges further pointed out in the interviews that comparative legal research can be of assistance for the uniform interpretation of legal rules across national borders, for example, in the context of EU law. A judge of the Cour de cassation mentioned the example of commercial law.242 In this field it is necessary that the applicable EU law is applied in the same way by judges in the EU Member States. If there is no supervision by the European Commission, then it is up to the national courts to ensure uniformity. This concerns both the determining of the conditions for establishing a breach of the law, and the applicable sanctions in a specific market. In this kind of cases, the ‘assemblée plénière’ (plenary assembly) of the Court can ask the Service de documentation to carry out comparative research concerning the interpretation of the applicable EU law by the national courts in other EU Member States.243 The Cour de cassation has made use of comparative law in a similar manner in family law cases addressing international private law issues. An interviewed judge indicated that foreign case law can be cited in judgments concerning international private law and conflicts of laws. The judge further mentioned that the interpretation of the law of a foreign

238

Ferrand, ‘The French Approach’ (n 236) 355. Grosmangin Cass (assemblée plénière), 29 June 2001, App no 99-85.973, Bulletin 2001 AP No 8, 19. 240 Golfier Cass, 30 June 1999, App no 97-82.351, Bulletin criminel 1999 No 174, 511. 241 See the judgments cited in nn 239 and 240. 242 Concerning the use of comparative law in this field, see also Bézard, ‘Les magistrats français et le droit comparé’ (n 37). Bézard, a former judge, indicates that no significant use was made of comparative law by the Cour de cassation in commercial cases in 1994, mainly because of the efforts which would have had to be made at that time to obtain the relevant information; Ibid 780. 243 See Chapter 3, IIB. 239

Use of Foreign Law: Examples from Case Law 193 country can be required in cases concerning the execution of judgments under the principle of mutual trust. Comparative law sometimes plays a role in the decision-making in administrative cases as well. An honorary member of the Conseil d’Etat has observed that comparative law is used by the highest administrative court in four main areas, namely, liability, aliens’ law, civil liberties and the relationship between domestic and international law.244 Examples include the discussion by the commissaire du gouvernement of English and US case law with regard to a wrongful life claim, and of English, US and Canadian case law with regard to the claim for compensation of moral loss on the grounds of the disrespect of a patient’s expressed will not to receive a blood transfusion.245 In the case law of the Conseil d’Etat, examples can be identified in which comparative law featured as an argument cited by the reporting judge (‘rapporteur public’), as a supporting argument in the reasoning of a decision, and exceptionally as the basis for the argumentation of the decision in a specific case.246 The rapporteur public plays an important role in this respect, as he or she can use comparative law in formulating an advice to the court. Still, explicit references to judgments of foreign courts in principle do not occur in the decisions of the Conseil d’Etat, as this would not fit the style of reasoning of the highest administrative court. However, an interviewed member of the Conseil recalled that in a rare case a judgment of the British High Court had been cited. This ‘black swan’ was the case of Techna SA, which concerned the EU requirements regarding labelling.247 The Conseil d’Etat pointed out that a preliminary ruling concerning the validity of the applicable EU Directive had already been requested by the High Court. Citing the reasoning of the British court, the Conseil d’Etat decided to suspend the application of the relevant provisions of the French ‘décret’ (decree) transposing this Directive.248 An interviewed judge of the Conseil d’Etat considered that this citation had been added to the judgment partly because it amused the judges to do so. Indeed, it is hard to imagine why in this specific case the Court did include a direct reference to the judgment of a foreign court while in so many other cases it had not done this.

244 R Errera, ‘The Use of Comparative Law before the French Administrative Law Courts’ in G Canivet, M Andenas and D Fairgrieve (eds), Comparative Law before the Courts (London, BIICL, 2004) 156. 245 Ibid 157–58. 246 Mialot, ‘L’utilisation du droit comparé’ (n 91). 247 Techna SA CE, 29 October 2003, App no 260768. See also Dutheillet de Lamothe, ‘Constitutional Court Judges’ Roundtable’ (n 147) 555; M Andenas and D Fairgrieve, ‘“There is A World Elsewhere”: Lord Bingham and Comparative Law’ in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford, Oxford University Press, 2009) 845. 248 Ibid.

194 The Use of Foreign Law in Judicial Decision-Making (v) Dutch Highest Courts Because of the absence of citations of non-binding foreign law in published judgments, it is difficult to assess the impact of comparative law on the decisions taken by the Dutch highest courts. Indeed, a research of the case law of the Raad van State yielded only a few citations of judgments of national courts in other jurisdictions. An interviewed judge recalled the judgment of the Council in the case of the Mothers of Srebrenica Citizens’ Association, which had requested the disclosure of documents concerning the UN Protection Force in the former Yugoslavia.249 In this case, assistance for the interpretation of the UN Convention on Privileges and Immunities was found in Belgian case law. The Raad van State considered: According to [appellants], the judgment delivered by the Tribunal de Première Instance de Bruxelles on 11 May 1966 in Manderlier v The United Nations (Journal des Tribunaux 1966, p 721ff; ‘Manderlier’) confirms that the privileges and immunities of the UN may not be accepted unreservedly but must be subject to review.250

The Raad van State cited its own earlier case law, in which it had held that the UN Convention prohibited the Minister of Defence from granting the application for disclosure of requested UN documents.251 After discussing the United Nations’ view concerning the confidentiality of the documents requested in the case at hand, the Raad van State discussed the argument advanced by the appellants on the basis of the Manderlier judgment. The Council considered: The Manderlier judgment at first instance gives no reason to conclude otherwise. In its judgment the court of first instance in Brussels dismissed the plaintiff’s civil claim against the UN because the UN invoked its immunity from every form of legal process pursuant to article II, section 2 of the UN Convention on Privileges and Immunities. In its judgment of 15 September 1969 (Revue critique de jurisprudence belge 1971, p 449 ff) the Cour d’Appel de Bruxelles upheld the court of first instance’s judgment. In its judgment, the appeal court held that by acceding to the UN Convention on Privileges and Immunities, the parties to the UN Charter have established the necessary privileges and immunities and that the courts would be exceeding their authority were they to assume the right to evaluate the necessity of the immunities vested in the UN by that convention …252

The Raad van State held that the argument of the appellants was untenable and that the appeal therefore was unfounded. It upheld the contested

249 ABRvS 3 March 2010, LJN BL6245. The judgment also contains a discussion of EU law and CJEU judgments mentioned in the arguments of the appellants. See above, IIA. 250 Ibid para 2. 251 ABRvS 25 March 2009, LJN BH7691. 252 ABRvS 3 March 2010, LJN BL6245, para 2.

Use of Foreign Law: Examples from Case Law 195 judgment of the District Court of Amsterdam.253 It seems that the Belgian judgments in this case were discussed primarily to give a reply to the arguments put forward by counsel for the appellants. An interviewed judge pointed out that in principle the Raad van State does not refer to the case law of foreign courts for the interpretation of international treaties, if sufficient information is available through international courts, in particular the European courts. This approach is taken with regard to all foreign courts, including constitutional courts. Therefore, the described case should indeed be considered to constitute an exception. Concerning the Hoge Raad, its Annual Report 2007–2008 addressed ‘international dimensions’ in the Civil Law Chamber’s case law.254 However, comparative legal research was merely mentioned as a tool used to identify the meaning of rules of uniform private law, and only two specific examples were given of cases in this category in which the Supreme Court’s decision was based on the use of international and comparative law.255 This was slightly different in the Annual Report 2009–2010, which was entirely dedicated to the internationalisation of the Hoge Raad’s decision-making. The chapter of the report concerning the Civil Law Chamber contained a detailed explanation of the Court’s use of the comparative method of interpretation, which has become the standard in cases in which no supranational court exists to which a request for a preliminary ruling can be sent.256 The information obtained from judges and Advocates-General confirmed that, in this type of cases, comparative law at least plays a role in the phase of discovery before the judgment is written. For the judges of the Dutch Hoge Raad, foreign judgments which are taken into account in the judicial deliberations mostly originate in France and Germany, and sometimes in England or the United States. Several judges mentioned to consult the German Bundesgerichtshof’s case law in cases regarding commercial law, for example, the law on bills of exchange, and in intellectual property cases. The Hoge Raad considered, for example, the case law of the Bundesgerichtshof in deciding whether LEGO, after the expiry of its patent, could halt the copying of its toy building blocks through an action based on precise imitation (‘slaafse nabootsing’).257 Another example concerned the comparison of Dutch and German judgments in cases where the interpretation of the Convention on the Contract for the International Carriage of Goods by Road (CMR), which forms part of transnational uniform commercial law, is required. A famous example in which the Court

253

Ibid. Hoge Raad (Netherlands), Verslag 2007 en 2008, 50–59, available at www.rechtspraak.nl. 255 Ibid 55–56. 256 Hoge Raad, Verslag over 2009–2010, 17–21. 257 LEGO v Mega Brands HR 20 November 2009, LJN BJ6999. Advocate-General Verkade, para 4.6, discusses BGH 2 December 2004, I ZR 30/02, GRUR 2005/4, 349. 254

196 The Use of Foreign Law in Judicial Decision-Making was informed about relevant non-binding foreign law by the AdvocateGeneral concerned the Baby Kelly case regarding a ‘wrongful life’ claim, meaning a claim for damages in the name of a severely handicapped child born as a result of an incorrect diagnosis during the mother’s pregnancy. In his opinion for this case, Advocate-General Hartkamp included an extensive discussion of, inter alia, French and German case law.258 In criminal cases, most of the interviewed judges of the Hoge Raad considered that references to foreign judgments occur more often with regard to questions of substantive law than with regard to questions of procedural law. These references seem to have for an aim to better identify the current state of the domestic law. Examples which were mentioned concern the comparison with German law regarding the absoluteness of the right of nondisclosure;259 the explanation on rights of appeal (‘Rechtsmittelbelehrung’); and the interpretation of the concept of self-defence (‘noodweer’).260 In a case concerning the insulting of a group (‘groepsbelediging’), extra literature and case law was added to the judges’ file by the reporting judge, and on the suggestion of another judge a judgment of the British Law Lords was used in the deliberations in chambers. Concerning the right to a fair trial, US law is considered instructive in addition to the ECHR. Concerning tax law, in some cases the case law of courts in other OECD member states is analysed to find guidelines for the application of the OECD Model Tax Convention (MTC).261 Furthermore, the example was mentioned of a case in which the Court of Appeal for England and Wales was contacted because it seemed that pending preliminary questions of this Court to the CJEU might be of use for the decision of the Dutch case as well. In yet another case, the judgment of a Greek court was deemed relevant for a decision regarding unjustified VAT reclaims. However, here the problem of understanding the context and language of the decision came up.262 Finally, judges in the Hoge Raad indicated that they sometimes take account of prestigious ‘soft law’ instruments when judging cases. A Dutch judge in tax cases mentioned that regulations of the International Accounting Standards Board263 have been used by the Hoge Raad as a

258 Baby Kelly HR 18 March 2005, NJ 2006, 606 (opinion of Advocate-General Hartkamp). On the transnational judicial dialogue in wrongful life cases, see further I Giesen, ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’ (2012) 8 Utrecht Law Review 35. 259 See, eg HR 12 October 2010, LJN BN0526 (opinion of Advocate-General Jörg), para 90, citing German, French, Swiss and US legal sources which define the scope of the right of non-disclosure. 260 See, eg HR 4 January 2011, LJN BO4475 (opinion of Advocate-General Silvis), para 10, citing German doctrine and the case law of the Bundesgerichtshof as sources which confirm the case law of the Hoge Raad. 261 See www.oecd.org. 262 Concerning these practical obstacles to the use of comparative law, see further below, IIIB. 263 See www.ifrs.org.

Use of Foreign Law: Examples from Case Law 197 guideline for its decision-making. Likewise, the OECD Commentary to the MTC is considered an aid to the interpretation of this treaty. In the Civil Law Chamber, a source of reference sometimes used are the aforementioned Principles of European Contract Law.264 A search of the published judgments of the Hoge Raad yielded 23 judgments of the Civil Law Chamber, given between 2002 and 2012, in which reference was made to the PECL or commentaries of these Principles. All references are to be found in the opinions of the Advocates-General.265 The interviewed judges and Advocates-General asserted that the PECL are used for guidance only. An Advocate-General mentioned the example of assessing the termination of a breach of contract, taking account of fundamental interests of the parties. The analysed case law of the Hoge Raad corroborates this view. In a case concerning the interpretation of the termination clause included in a contract of employment, Advocate-General Huydecoper observed that two kinds of interpretation identified in the Dutch academic literature in some foreign legal doctrines are considered to be identical.266 In a footnote to this observation, he remarked that: Notwithstanding many differences, the sources of law for our neighbouring countries indicate a remarkable unanimity as regards the idea a) that contracts are to be interpreted in the first place on the basis of the intentions of the parties, which unless proved otherwise have to be interpreted in light of the standard of the ‘reasonable man’; and b) that an addition to what was agreed upon in the absence of proved or reasonably assumed intentions of the parties has to take place with reference to what reasonably judging parties in the given case would have assumed.267

The influence of these observations on the deliberations and the decision of the Hoge Raad is not evident from the judgment, since the judgment was given with the shortened reasoning allowed by section 81 of the Judicial Organisation Act.268 C. Conclusion Binding sources of international law will be cited by the judges in the examined courts in cases in which these materials are directly relevant for the solution of the case. The interviewed judges indicated that such references are frequent in cases with an international aspect, such as cases 264

See above. See www.rechtspraak.nl (search term ‘Principles of European Contract Law’). 266 HR 13 November 2009, LJN BJ8724 (opinion of Advocate-General Huydecoper), para 20. 267 HR 13 November 2009, LJN BJ8724 (opinion of Advocate-General Huydecoper), note 18 (my translation). 268 See Chapter 3, IIC. 265

198 The Use of Foreign Law in Judicial Decision-Making concerning extradition or the conflict of laws. This frequency is related to the direct relevance of these foreign legal materials to the solution of the case at hand. The citation of foreign legal materials also takes place, in the United Kingdom, France and the Netherlands, in cases where relevant European law or case law of the CJEU or ECtHR is available and has to be implemented in the domestic legal system by the national judges. Sometimes reference is made to the legal system at which a specific judgment of one of the European courts was directed. References to non-binding foreign legal materials are less frequent in all of the examined courts. Although the use of such foreign legal materials is not always easily apparent in the published judgments, the interviews clarify that foreign law is studied and discussed and if not persuasive at least has a guiding role in the deciding of some domestic cases. With regard to the use of non-binding foreign law, an important observation concerns the distinction between the use of materials in judicial deliberations and in the published reasoning of judgments. In some jurisdictions, including the Netherlands and France, the tradition is that no citations of foreign case law are included in judgments. However, this does not mean that no foreign sources are considered during the process of discovery of relevant arguments for the decision. Indeed, the experiences of the Dutch and French judges, described above, provide evidence that the highest national courts consult the case law of courts in other jurisdictions more frequently than might be expected on the basis of an analysis of their published judgments. III. JUSTIFICATION OF DEVELOPED PRACTICES

The described views and experiences of the judges give insight into the way in which international and comparative law are used in the decision-making of the highest courts in domestic cases. This description also yields some clarification concerning the motives of judges for consulting foreign law and concerning their ideas about the appropriate methodology for including foreign law in judicial decision-making. Still, it remains unclear to what extent the judges have developed a systematic way of using foreign law, in particular non-binding foreign legal sources. In order to better understand why and how judges think that foreign law can be used in the decisionmaking of highest courts, these two topics were addressed explicitly during the interviews. The views of the judges concerning these matters will be presented and analysed in the next pages. A. Judicial Argumentation and the Style of Judgments The citation of foreign law in judgments, first of all, is connected with the style of judicial reasoning which has developed in a specific legal system.

Justification of Developed Practices 199 Secondly, the perceived usefulness of citations of foreign legal sources plays a role in the use of these sources in deliberations and judgments. Finally, some methodological challenges were considered by the judges. (i) Citation of Foreign Legal Materials The problem of citation mainly concerns the use of non-binding foreign legal sources in judicial decision-making. In common law jurisdictions, the judgments of the highest courts regularly contain citations of comparative law. According to the former Canadian Supreme Court Justice Bastarache, relying on his own experience, references to foreign case law in the Canadian Supreme Court are systematically attributed.269 Nonetheless, academic research has demonstrated that foreign inspiration is not always acknowledged by the Anglo-Saxon courts. For example, the Supreme Court of Canada, in R v Oakes,270 introduced a proportionality test for the application of section 1 of the Charter of Rights and Freedoms, concerning the justified limitation of rights and freedoms. The introduction of this test seemed to be inspired by European and in particular German jurisprudence. However, no mention is made of this foreign inspiration, even though the judgment contains references to foreign legal materials to support the reasoning of other parts of the decision.271 An interviewed judge explained this by pointing out that an explicit reference to the ECtHR’s case law would cause an embarrassment to the Canadian interpretation of the Charter if the Strasbourg Court were to change its approach.272 A clear difference exists between the studied Anglo-Saxon and continental-European courts. The practice of citing comparative legal sources does not fit the style of reasoning of the courts in France and the Netherlands. Indeed, the interviewed judges in these courts confirmed that, in general, no attribution of references to non-binding foreign law can be found in the published judgments of the courts.273 References to the case law of the ECtHR and CJEU, by contrast, are frequent. This frequency can be related to the role of these European courts concerning the guarantee of the uniform application of the legal norms which they were assigned to protect. In light of the significant role of these legal norms, namely, the ECHR and 269

Bastarache, ‘The Globalisation of the Law’ (n 59) 50. R v Oakes [1986] 1 SCR 103. 271 B Roy, ‘An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation’ (2004) 62 University of Toronto Faculty Law Review 99, 117–18. See also below. 272 See below. 273 See also AM Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99, 118. A comparative analysis of judicial deliberative processes, demonstrating, inter alia, the existence of a ‘hidden dialogue’ in the French Cour de cassation, has been conducted by M de S-O-l’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004). 270

200 The Use of Foreign Law in Judicial Decision-Making EU law, in cases decided by the French and Dutch courts, it is not surprising that the national courts refer to the interpretation provided by the European courts. Concerning non-binding foreign law, most of the interviewed judges at the Dutch Hoge Raad expressed the fear that the discussion of foreign judgments in their decisions would give rise to criticism concerning the legal systems to which reference is made: why look at one system, but not at another? References to foreign judgments would thus risk weakening the authority of the judgments of the highest courts. Indeed, the discussion of foreign judgments would not fit the Dutch tradition of judgments, which might no longer be apodictic but are still reasoned more ‘economically’ than is the style in the common law tradition. The same applies to the style of reasoning of the French courts, from which the Dutch courts inherited their tradition. In both legal systems, the conclusions of the AdvocateGeneral, which are published alongside the judgments of the Cour de cassation and the Hoge Raad, are considered sufficient to give more insight into the background for these Courts’ reasoning. The conclusion of AdvocateGeneral Hartkamp in the Baby Kelly case concerning a ‘wrongful life’ claim, for example, contained an extensive discussion of, inter alia, French and German case law.274 (ii) Why Judges Cite Foreign Law Why do judges cite foreign law? A distinction can be made between the citation of binding and non-binding foreign sources. The binding foreign sources in the examined legal systems are sources of international law, which have been granted formal authority at the national level. In the European countries, the most prominent sources in this respect are EU law and the ECHR. In this context, the use of sources in judicial decisionmaking is influenced by the political aim of harmonisation of law amongst the Member States of the European Union and the Council of Europe. The relatively big impact of EU law and the ECHR on national legal systems, combined with the role of the European courts in Luxembourg and Strasbourg as guardians of the uniform interpretation of the law within their jurisdiction, has influenced the functioning of the highest national courts in the Member States. As a consequence of the establishment of the European legal regimes, the highest courts in the United Kingdom, France and the Netherlands were faced with questions concerning the interpretation of European legal norms and, in this context, they engaged in a dialogue with the CJEU and ECtHR and with courts in other EU Member States and the Council of Europe. Concerning the use of international law

274

HR 18 March 2005, NJ 2006, 606. See Chapter 4, IIID.

Justification of Developed Practices 201 in the United States and Canada, the current situation is different. In the United States, Justice Breyer has observed that legal regimes are increasingly developing in an analogous manner, independent of the formal relations that exist between these regimes.275 Still, the formal obligation of judges to contribute to the harmonisation of laws across national borders is less present in North America when compared to Europe. Indeed, the Canadian former Supreme Court Justice Bastarache has argued that ‘[w]hat we need is broadening legal discourse, comparative deliberation—not trying to keep up with some kind of international development’. This judge has also pointed out that, even if harmonisation was to be considered a legitimate aim, the selection of ‘like-minded jurisdictions’ to take into account in this effort of harmonisation would be problematic.276 The fact that the British, French and Dutch judges do their work in the ‘Europeanised’ context seems to be able to account for their different views on this topic, as expressed in the interviews. Which motives do the highest court judges have for citing non-binding foreign law? The views of the judges regarding what constitutes sound and efficient judicial decision-making are of importance here. Concerning the aim of using comparative legal materials in judicial deliberations, the interviewed judges indicated that several motives play a role, on their own or in combination. The use of non-binding foreign legal sources is considered useful, first, when the case to be decided holds particular public importance. Secondly, comparative legal materials are considered helpful when judges want to obtain better knowledge or a yardstick for the judgment of the case at hand. Thirdly, judges measure themselves with other courts and want to meet the same quality standards as their ‘peers’ in other jurisdictions. Finally, the research of non-binding foreign legal materials allows judges to spot trends regarding the evolution of the law in other legal systems and to determine their own position regarding these trends. Concerning the citation of foreign law in the reasoning of judgments, the interviewed judges in the examined Anglo-Saxon courts pointed out that they cite all arguments which they consider to be persuasive. This view corroborates the common law conception, in which the judge feels that he owes a duty to counsel to explain why their arguments are not accepted.277 However, non-binding foreign sources are considered to have no value of precedent. The British and Canadian judges indicated that judgments from Commonwealth countries are sometimes used as persuasive precedents in the decision-making of the Supreme Courts, as opposed

275 276 277

Breyer, ‘The Supreme Court and the New International Law’ (n 79). See above, IB. Bastarache, ‘The Globalisation of the Law’ (n 59) 45. See above, IB.

202 The Use of Foreign Law in Judicial Decision-Making to the binding precedents in the domestic legal system.278 According to the Canadian Justice Bastarache, the use of non-binding foreign law by the Canadian judges is generally aimed at the justification of decisions already made. Therefore, citations of foreign law concern supportive rather than authoritative arguments.279 Citing legal scholars Julie Allard and Antoine Garapon, Justice Bastarache has argued that Canadian judgments are merely aimed at persuading the public (jurisdiction) and not at the executory force of the decision (imperium).280 This view was confirmed by interviewed judges in the examined highest courts, both in the common law and in the civil law jurisdictions. Judges in all of the examined courts felt that the guiding influence of comparative legal materials does not push them to follow the solutions which can be found in another legal system. An interviewed Dutch judge pointed out that the weighing of arguments in a specific case might, and often will, lead to a different result than achieved in the foreign cases with which a comparison is made. An example put forward by several of the Dutch judges concerned the Hoge Raad’s case law regarding the doctrine of conditional intent (‘voorwaardelijk opzet’). Legal questions about the interpretation of this doctrine arose in cases concerning the alleged attempt to commit manslaughter, for example, through the wilful transmission of HIV infection281 or through the wilful causation of traffic accidents.282 Concerning the application of this doctrine in new circumstances, the judges of the Criminal Law Chamber have sought inspiration in German law, and in the HIV cases they also studied French, Austrian, Canadian and Australian sources.283 Regarding the HIV cases, a balancing act was required between the policy preference to keep these cases outside of the criminal law process, on the one hand, and the legal acceptance of a broader conception of ‘conditional intent’, on the other hand. Several judges mentioned that the German approach to this question was influential on the decision-making of the Hoge Raad, but that in the end a different solution was chosen for the Netherlands.

278

See also Chapter 3, and above, IIB. Bastarache, ‘The Globalisation of the Law’ (n 59) 51. 280 Ibid, citing J Allard and A Garapon, Les juges dans la mondialisation: La nouvelle révolution du droit (Paris, Seuil, 2005). See also Roy, ‘An Empirical Survey’ (n 271). 281 HIV-I HR 25 March 2003, NJ 2003, 552; HIV-II HR 24 June 2003, NJ 2003, 555; HIV-III HR 18 January 2005, NJ 2005, 154; HIV-IV HR 20 February 2007, NJ 2007, 313. 282 See, eg Porsche HR 15 October 1996, NJ 1997, 199. More recently, the Court specified its case law in the case of a man who was convicted for the alleged attempt to kill his ex-wife by driving his car into a canal, but who was acquitted for the same offence concerning his daughter whom he himself brought to the shore. HR 29 September 2009, LJN BI4736, see in particular the conclusion of Advocate-General Vellinga, para 12. 283 See, eg HIV-IV HR 20 February 2007, NJ 2007, 313, conclusion of Advocate-General Bleichrodt, para 3.7.7, in which German and Swiss law are analysed. 279

Justification of Developed Practices 203 The information obtained through the interviews in part corroborates the results of empirical research conducted by others. In particular, similar conclusions have been reached by Flanagan and Ahern, who conducted a survey amongst 43 common law supreme court judges concerning their use of comparative law in the decision-making in constitutional rights cases.284 However, the research presented in this chapter also gives rise to different observations. In particular, the views expressed by the interviewed judges challenge the conclusion of Flanagan and Ahern that judges are predominantly opportunistic when referring to foreign law.285 Opportunism, in this context, means the ‘cherry picking’ of foreign judgments which support a judge’s own decision in a domestic case. Based on the interviews, a fairer claim seems to be that judges are not systematic in their use of comparative legal sources in judicial decision-making. This lack of a systematic approach means that judges cannot point out in precise terms why they consult non-binding foreign sources in one case—including judgments which do not support the argument that they want to make—and why they do not consult this type of sources in another case. In this respect, the lack of a systematic approach might be an indication of opportunism, but it can also be related to other motives. One such motive concerns the time constraints which influence the working methods of judges. This leads us to the consideration of some methodological challenges concerning the use of foreign law, outlined by the interviewed judges. (iii) Methodological Challenges Several of the interviewed judges made observations concerning the methodological aspects of the use of foreign law in judicial decision-making. Concerning international law, difficulties with regard to the application of the case law of international and supranational courts were pointed out. Also, the judges emphasised that one should realise that international law is applied locally, and that therefore the local context needs to be taken into account. The British and Dutch judges indicated that they sometimes find it difficult to apply EU law correctly. The British judges consider the judgments of the CJEU to be difficult to read. One judge characterised the CJEU’s judgments as ‘Delphic’. Another judge criticised the ‘flabby reasoning’ of the CJEU, caused by the need to find a compromise between the judges deciding the case. The late Lord Bingham’s analysis already showed that

284 B Flanagan and S Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 International and Comparative Law Quarterly 1. 285 Ibid 24.

204 The Use of Foreign Law in Judicial Decision-Making differences in the style of judging may sometimes lead to misunderstandings between courts.286 Concerning the case law of the ECtHR, British judges have openly criticised the clarity, consistency and persuasiveness of specific Strasbourg judgments.287 This view was corroborated by the views of several interviewed judges, who expressed reservations concerning the quality of the ECtHR’s judgments. Judges in all of the examined highest courts expressed awareness of methodological pitfalls regarding the use of non-binding foreign law as a comparative instrument. Several judges mentioned the importance of making sure that one understands the background of the foreign rules with which a comparison is made. Another limitation concerns possible changes in the case law of foreign courts. An interviewed Canadian judge emphasised that judges should be aware of this possibility, and illustrated this through an example concerning the Canadian Supreme Court’s search for guidance in the case law of the ECtHR. As we saw, this case law has been influential in the interpretation of the proportionality test laid down in section 1 of the Canadian Charter of Rights and Freedoms regarding the justified limitations of fundamental rights.288 The Supreme Court of Canada has used the ECtHR’s judgment in the Sunday Times case289 as a guideline for its own decision-making. However, the interviewed judge observed that it is important to follow one’s own approach. Otherwise, the Supreme Court of Canada would have a problem if the ECtHR changed its mind after some years and overturned its earlier decision. In other words: one should be careful not to lock oneself into another’s jurisprudence. Interestingly, some of the interviewed judges do not consider it necessary to develop a methodology for the use of non-binding foreign law. A judge in the US Supreme Court indicated finding it an unfortunate thing about present-day lawyers, judges, academics and people in general that they want to organise things. This judge feels that principles should be given less importance; people should be given an opportunity to learn, and care about doctrine later. This judge resists the formal and thinks that the development of the use of comparative law should take place on an ad hoc basis. Another US Supreme Court judge echoed this view by observing that comparative law should be looked at when this is appropriate. The question of what is appropriate should be decided on a case-to-case basis. This judge emphasised that the judges on the US Supreme Court 286

T Bingham, The Rule of Law (London, Allen Lane, 2010) 47. See, eg Lord Nicholls in N v SSHD [2005] UKHL 31, [2005] 2 AC 296, paras 11 and 14. See Bjorge, ‘National Supreme Courts’ (n 10) 16. See also D Feldman, ‘Human Rights’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009). 288 See also above, IB. 289 Sunday Times v United Kingdom (1979–80) 2 EHHR 245 (ECtHR, 26 April 1979). 287

Justification of Developed Practices 205 are practically rather than scientifically oriented in their approaches to judicial decision-making.290 The first judge felt that academic scholars can help to point out what is happening with regard to the role of nonbinding foreign law in judicial decision-making and what courts can and may do. When asked how elaborate the study of comparative law should be to be considered exhaustive, this US judge said that this depends on the case. The judge mentioned the example of a case concerning the time prisoners spend on death row, which was alleged to be too long. In this case, the argument was made that no country supports this practice. To verify this argument, it was necessary to do extensive research to see whether it was really the case that no countries at all could be found. The same US judge stressed that judging remains a ‘good faith effort’. Nonetheless, a number of basic standards of judicial decision-making seem to govern the ‘good faith effort’ made by judges when using comparative law in the deciding of cases. In particular, the considerations of the interviewed judges in this regard concerned the reasoning of judgments. Some of the British judges admitted to be in favour of ‘cherry picking’, meaning the practice of referring only to comparative legal materials which support the decision which the judges have in mind, while not discussing the materials which point in a different direction. The judges are aware of the criticism which might be made of this ‘picking out one’s friends from the crowd’, as one judge of the UK Supreme Court put it, citing Chief Justice Roberts of the US Supreme Court.291 However, the British judges put their approach in perspective by emphasising the different aims of discussing relevant sources for a decision, which occurs during the phase of discovery, and constructing a sound reasoning for the decision, which is done in the phase of justification. The judges of the UK Supreme Court, like their Canadian counterparts, attach much importance to the search for the most persuasive arguments for the judgment in the case at hand, regardless of the origins of these arguments. Some judges in other courts did not feel comfortable with this approach. One of the interviewed US Supreme Court Justices indicated disfavouring ‘cherry picking’ in the use of comparative law, either in judicial deliberations or in judgments. According to this judge, arguments both for and against the decision taken should be discussed, similar to the discussion of precedents in judicial reasoning. The interviewed Dutch judges, too, in general feel that comparative legal materials brought to their attention deserve a full discussion.

290

Concerning the personal background and training of judges, see Chapter 4, IIB. ‘Judge John Roberts Confirmation Hearings’ (askSam eBooks and Databases), available at www.asksam.com/ebooks/JohnRoberts/confirmation_hearing.asp. 291

206 The Use of Foreign Law in Judicial Decision-Making B. Selection of Comparative Legal Materials: Tradition, Language and Prestige The described experiences of the interviewed highest court judges give more insight into the considerations made by the judges when selecting non-binding foreign legal materials for the judicial deliberations. This selection seems to depend to a large extent on three factors: tradition, language and prestige. The experiences within each of the examined courts gave rise to observations from the interviewed judges. Because of the role of national particularities in this regard, we will discuss these observations per country. (i) UK Supreme Court For the UK Supreme Court judges, the first criterion for the selection of foreign judgments concerns legal tradition, in the sense of the shared background with other common law systems. Sources most often referred to come from Commonwealth legal systems and from the US legal system. Concerning the Commonwealth legal systems, in particular the case law of the highest courts of Australia, Canada and New Zealand is considered helpful. The accessibility of these sources, regarding language and availability, forms an extra reason for the judges to look at these foreign sources first. To a lesser extent, the prestige of a foreign court can give reason for the judges to take this court’s case law into account. In this respect, the British judges occasionally cite judgments coming from courts in France, Germany or Italy. Dutch judgments are sometimes referred to as well. This can be seen, for example, in the Fairchild judgment, in which the Law Lords cited the case law of the Hoge Raad regarding employer’s liability for asbestos-related diseases.292 Concerning human rights cases, the British judges mentioned the case law of the Inter-American Court of Human Rights as a source of inspiration. However, concerning such ‘non-common law sources’ the problems of language and availability are felt to be significant. (ii) Supreme Court of Canada The Canadian judges agree that, technically, the Supreme Court could pretty well ignore non-binding foreign sources in its decision-making. However, as a judge explained, the discussion of foreign sources in judgments is considered useful as a contribution to the ‘community of interpretation’ between judges in different legal systems. This community of interpretation can exist if languages permit judges to take notice of each other’s decisions. Therefore, language is an important criterion in the selection of foreign

292

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32.

Justification of Developed Practices 207 legal sources for discussion.293 The Supreme Court of Canada is Englishoriented. For this reason, problems related to language are most clearly visible with regard to sources from jurisdictions in which English is not an official language. Sometimes translations of judgments are taken into account, for example, of the German Bundesverfassungsgericht, which is held in high regard by the Canadian judges. Besides language, shared tradition also is at the basis of the Court’s willingness to pay attention to the case law of other common law courts. In this light, Justice Binnie has argued that foreign sources in Canadian judicial decision-making do not serve as a ‘fig leaf’, used to manipulate domestic judgments. Instead, these sources play a role in debates and dissension amongst common law courts. Concerning the ‘dialogue’ between the common law courts, Justice Binnie has observed that: Commonwealth Courts seem as often as not to go out of their way to quarrel with each other’s jurisprudence, at other times we hang on to borrowed ideas that have been abandoned in their country of origin.294

The interviewed Canadian judges mentioned that in cases coming from Québec, quite often French judgments are quoted. However, the Supreme Court of Canada mostly leaves private law cases to the Court of Appeal of Québec.295 According to an interviewed judge, the Canadian cultural context has an influence on judicial practice here. Two French minorities exist in Canada: the Québécois, who form a minority in Canada and a majority in their own province, and the French-speaking non-Québécois, who are a minority in Canada and in their own province. The French minority in general is wary of government decisions. The French-speaking Canadians in the provinces outside Québec are in constant fear of assimilation. In this respect, a divide exists between English and French-speaking Canadians. However, the interviewed judge observed that the fear of the Québécois concerning the respect for their culture and legal system is not justified as regards the decision-making of the Supreme Court, which expresses much respect for the diversity existing within Canada. Through its practice of leaving certain cases to the Court of Appeal of Québec, the Supreme Court shows respect to the expertise of this Court of Appeal and to its affinity with the particular legal culture and legal system of the province of Québec. The Canadian judges also pointed out that the choice of legal systems for comparison depends on the subject matter of the case. For example, pure

293

See also the examples of the use of foreign law mentioned above, IIB. Binnie, ‘Foreign Sources’ (n 71), citing several examples of ‘dialogue’ from the case law of the Supreme Court of Canada, the House of Lords, the High Court of Australia and the Supreme Court of New Zealand. 295 See further above, IIB. 294

208 The Use of Foreign Law in Judicial Decision-Making economic loss is a problem in the common law but not in the civil law. Therefore, the Supreme Court of Canada will turn to other common law jurisdictions when looking for guidance on this topic.296 Concerning federalism issues, the Canadian Constitution is different from the United States and Australia. Even though the judges will still look at these Constitutions for inspiration, they admitted that the differences make it more difficult to find useful information. In a published article, former Supreme Court Justice Claire L’Heureux-Dubé has observed that US judgments concerning federalism may be less influential than ‘principles that are more universal’.297 Finally, an interviewed judge observed that a perceived similarity in methods of decision-making with a prestigious foreign court can also be a reason for the Canadian judges to engage in comparative legal research. A judge observed in this respect that the Supreme Court of Canada balances rights in a similar way as the ECtHR does in its decision-making. In order to illustrate this point, the judge mentioned the example of R v National Post, in which the Supreme Court of Canada considered the ECtHR’s judgment in Sanoma Uitgevers v The Netherlands.298 The case judged by the Strasbourg Court concerned the question whether the magazine Autoweek should reveal the sources which could lead to the arrest of persons participating in an illegal street race, which had been covered in the magazine.299 In the Canadian case, the question was whether a warrant could be given for the search of the premises of the newspaper National Post in order to find evidence concerning an anonymous journalistic source suspected of the forgery of a bank document which would implicate the then Prime Minister of Canada in a financial conflict of interest.300 The Supreme Court of Canada was called upon to judge this case in the light of sections 2(b) and 8 of the Canadian Charter of Rights and Freedoms and the common law of privilege. In the majority opinion delivered by Justice Binnie, the Court considered that a balancing of two public interests was at stake: ‘the public interest in the suppression of crime and the public interest in the free flow of accurate and pertinent information’.301 Still, the usefulness of the methodological similarity between the approaches of the Supreme Court of Canada and the ECtHR can be diminished

296 See in this respect also VV Palmer and M Bussani, Pure Economic Loss: New Horizons in Comparative Law (Abingdon, Routledge-Cavendish, 2009). Concerning the influence of Canadian case law on this topic in England, see P Giliker, ‘Revisiting Pure Economic Loss: Lessons to be Learnt from the Supreme Court of Canada?’ (2005) 25 Legal Studies 49. 297 L’Heureux-Dubé, ‘The Importance of Dialogue’ (n 65). 298 Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (ECtHR, 14 September 2010). 299 Ibid. 300 R v National Post [2010] SCC 16, [2010] 1 SCR 477, paras 8–25. 301 Ibid para 28.

Justification of Developed Practices 209 in specific cases by the different treatment of the subject matter in the applicable legal norms. This occurred in the National Post case. Having studied ECtHR judgments brought up by counsel for the appellants, Justice Binnie considered: Accordingly, in my view, the Strasbourg jurisprudence is not of much assistance to the appellants. Both Goodwin and Financial Times concerned a leak to the media by corporate whistleblowers of confidential internal documents. Neither involved criminal proceedings. Both involved private actions in the U.K. courts where the corporate plaintiffs, in the view of the European Court of Human Rights, had failed to demonstrate a public interest that outweighed the public interest in free expression. Sanoma is closer to our case. It is true that the European Court locates journalist-source privilege in art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, but that is necessarily so because the Convention is the source of its jurisdiction. For the reasons already stated I would not locate journalist-source protection in s 2(b) of the Charter but in the common law of privilege that is supportive of it.302

In light of the facts of the case, and weighing the arguments in light of criteria established in the Supreme Court’s case law, the Court decided to dismiss the appeal, therewith confirming the legality of the search warrant.303 It seems that the reference to ECtHR case law occurred here partly in reply to references brought up by the parties and partly as a means to support the choice of criteria for the balancing of the interests which were at stake in this case. The resemblance between the approaches of the Supreme Court and the ECtHR concerning the weighing of arguments facilitated the use of the comparative method. (iii) US Supreme Court In the United States, jurisdictions often looked at by the judges of the Supreme Court include Britain, because of the historical connection with the United States, and European countries, because of the human rights regimes which have developed there. Sometimes, non-Western jurisdictions are considered as well. A citation of Indian doctrine, inspired by English law, with regard to the interpretation of the notion of ‘cruel and unusual punishment’ can be found in the judgment in Roper v Simmons.304 A judge of the US Supreme Court confirmed that legal tradition is a factor in the choice of sources for comparison. The judge pointed out that the founders of the Constitution looked at English law and at the Enlightenment

302 303 304

Ibid para 68. Ibid para 97. Roper v Simmons, 543 US 551 (2005), para IV.

210 The Use of Foreign Law in Judicial Decision-Making from Scotland and France.305 Abraham Lincoln and his contemporaries studied the publications on commercial law by the famous British jurist Sir William Blackstone.306 Through Blackstone’s Commentaries on the Law of England, first published in 1766, they were introduced to the work of Sir Edward Coke,307 who in his turn made references to French legal sources. According to the interviewed judge, Blackstone’s Commentaries on the Laws of England and Coke’s Reports are still regularly used in the decision-making of the US Supreme Court. The significance of this work is reflected in a remark made by William Searle Holdsworth, a successor of Blackstone as Vinerian Professor of English Law at the University of Oxford. According to Holdsworth: If the Commentaries had not been written when they were written, I think it very doubtful that [the United States], and other English speaking countries would have so universally adopted the [common] law.308

The interviewed US judge further indicated that legal comparison with jurisdictions sharing the same legal tradition is considered easier than comparison with other jurisdictions. Concerning the common law courts, this judge indicated not to consider one common law court more influential in the United States than another. Yet, the prestige of courts does seem to be a significant factor in the selection of comparative sources from other foreign jurisdictions. Justice Breyer was criticised for a reference to Zimbabwe in a case concerning the legal classification of extreme long delays in death penalty procedures in light of the Eighth Amendment’s prohibition of ‘cruel and unusual punishment’.309 Breyer defended this choice by arguing that the highest court in Zimbabwe at the time was a very good court, even though the country has its problems concerning the upholding of liberal-democratic standards.310 Furthermore, language plays a role in the selection of systems for comparison by the US judges. An interviewed judge indicated reading French, but unfortunately not German. However, this judge observed that a lot of information is currently available in English. The judge described how a 305 See A Hamilton, J Madison and J Jay, The Federalist; or The New Constitution (J and A McLean, New York, 1788). 306 In particular W Blackstone, Commentaries on the Laws of England (Oxford, Clarendon Press, 1765–1769). 307 E Coke, Coke’s Reports (London, Joseph Butterworth and Son, 1826, original edn 1600–1615); E Coke, Institutes of the Laws of England (London, E and R Brooke, 1797, original edn 1628–1644). 308 WS Holdsworth, ‘Sir William Blackstone’ (1928) 7 Oregon Law Review 155, 157. 309 Justice Breyer, dissenting from the denial of certiorari in the appeal from Knight v Florida (98-9741) and Moore v Nebraska (99-5291), decided 8 November 1999. See also PJ Messitte, ‘Speech: Citing Foreign Law in US Courts: Is Our Sovereignty Really at Stake?’ (2005) 35 University of Baltimore Law Review 171, 173. 310 Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases’ (n 224) 528.

Justification of Developed Practices 211 law clerk from one of the German highest courts, during a visit at the US Supreme Court, assisted the judge in finding an English translation of a German judgment. When judges do have access to sources in a foreign language, they can find interesting references there. For example, French and Dutch case law was considered helpful to the US Supreme Court in the case concerning the reclamation of a Klimt painting stolen during the Second World War. The current owner, a state-owned museum, invoked sovereign immunity. Helpful guidance was found by Justice Breyer, who wrote a concurring opinion in this case, in, inter alia, a judgment from the Court of Appeal in Paris regarding a claim made by Christian Dior against a member of a foreign royal family, and a 1951 judgment of the District Court of The Hague: Second, the legal concept of sovereign immunity, as traditionally applied, is about a defendant’s status at the time of suit, not about a defendant’s conduct before the suit. Thus King Farouk’s sovereign status permitted him to ignore Christian Dior’s payment demand for 11 ‘frocks and coats’ bought (while king) for his wife; but once the king lost his royal status, Christian Dior could sue and collect (for clothes sold before the abdication). See Ex-King Farouk of Egypt v Christian Dior, 84 Clunet 717, 24 ILR 228, 229 (CA Paris 1957) (Christian Dior ‘is entitled … to bring’ the ex-King to court ‘to answer for debts contracted’ before his abdication ‘when, as from the date of his abdication, he is no longer entitled to claim … immunity’ as ‘Hea[d] of State’); see also Queen v Bow Street Metropolitan Stipendiary Magistrate (Ex parte Pinochet Ugarte), 1 App Cas 147, 201–202 (1999) (opinion of Lord Browne-Wilkinson) (‘[T]he head of state is entitled to the same immunity as the state itself … He too loses immunity ratione personae on ceasing to be head of state’); cf Ter K v The Netherlands, Surinam & Indonesia, 18 ILR 223 (DC Hague 1951) (affording Indonesia sovereign immunity after it became independent while the suit was pending).311

The French and Dutch judgments were accessible in English through the International Law Reports, a publication of Cambridge University Press. Through this medium, regular reports in English have been published since 1919 concerning decisions of international courts and arbitrators and judgments of national courts.312 (iv) French Highest Courts As we saw, references to comparative law occur less often in the French highest courts than in the Anglo-Saxon courts. When non-binding foreign

311 Republic of Austria v Maria V Altmann, 541 US 677 (2004) (concurring opinion of Justice Breyer). 312 International Law Reports (Cambridge, Cambridge University Press, 1919–present), available at www.justis.com/data-coverage/international-law-reports.aspx.

212 The Use of Foreign Law in Judicial Decision-Making legal sources are consulted, this comparison usually concerns other national legal systems in Western Europe or the case law of courts in other Frenchspeaking countries.313 An important obstacle for the French courts concerns the accessibility of foreign case law on the basis of language. Interestingly, the French courts have made an effort to make their own case law more easily accessible for non-French speakers. The Conseil constitutionnel, for example, has started to publish translations in, inter alia, English, German, Spanish and Italian alongside some of its decisions.314 On a different note, the interviewed judges observed that for comparative legal research it is necessary to know the context, both as concerns the terminology used and the meaning of an isolated decision for the application of legal rules in the foreign system. From this point of view, a competent legal research service is required. Differences between legal systems will have to be explained, for example, when comparing French and Canadian law. In this respect, a significant development in recent years concerned the establishment of facilities for comparative research at the Cour de cassation and the Conseil d’Etat.315 (v) Dutch Highest Courts Legal tradition and historical ties also play an important role in the comparative practices of the Dutch highest courts. The interviewed judges of the Hoge Raad indicated that French and German materials are often consulted because of the historical origins of large parts of Dutch civil and criminal law in these legal systems.316 Furthermore, an Advocate-General specialised in civil cases mentioned that specific legal systems, such as the United States and Germany, are known for their expertise with specific topics and hence are looked at frequently for guidance. The prestige of these legal systems and their courts, as well as the shared Western ideology underlying the legal systems, here seems to be the main factor for the legal comparison. In the Hoge Raad, most judges feel able to consult sources in English, French or German. However, language was considered somewhat problematic when it comes to the use of judicial assistance. In fact, a number of judges mentioned that they feel that their judicial assistants no longer always master foreign languages on a sufficient level. Interestingly, the Court offers possibilities to invest in the education of judicial assistants in this respect. An Advocate-General mentioned to have sent a judicial

313

See above, IIB. See, eg CC 30 July 2010, decision no 2010-14/22 QPC; CC 16 September 2011, decision no 2011-163 QPC. 315 See Chapter 4, IIIA. 316 See above, IIB. 314

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assistant of Caribbean origin, who had never learnt German in school, to take a German language course in the Netherlands. The Dutch highest courts have also invested in making their case law accessible to non-Dutch speakers. A number of important judgments of the Hoge Raad and the Raad van State have been translated into English and are available on the websites of these highest courts.317 For the Hoge Raad, these summaries concern, inter alia, the judgment in the Baby Kelly case on wrongful life, and the Mothers of Srebrenica judgment.318 The Raad van State’s judgment in the Mothers of Srebrenica case has also been translated into English.319

C. Conclusion The interviews clarify that binding international law has obtained a significant place in the judicial decision-making of the examined highest courts in the globalised legal context. References to these binding sources are attributed in judgments. The judges acknowledge their duty to contribute to the conformity of the domestic law with the applicable international and supranational legal norms. Furthermore, the highest courts in the examined European legal systems accept that they play a role in the process of harmonisation of legal rules across national borders. The research clarifies, too, that the judges have not yet developed a systematic approach to the use of non-binding foreign law. Examples of the voluntary use of comparative law in the case law of the highest courts are few, and the presentation of this practice by the interviewed judges was mostly of an anecdotal nature. The use of non-binding foreign law in the deciding of cases is partly driven by opportunism, in the sense that the judges might look to comparative law to find arguments which support a preferred decision. However, the use of foreign law is also driven by a desire to give judgments which live up to quality standards reflected in the decision-making practices of the highest courts in certain other jurisdictions.

IV. CONCLUSION

The judicial decision-making of the highest national courts in the United Kingdom, Canada, the United States, France and the Netherlands has been 317 For the Hoge Raad, see www.rechtspraak.nl/Organisatie/Hoge-Raad/Supreme-court/ Summaries-of-some-important-rulings-of-the-Supreme-Court/Pages/default.aspx. For the Raad van State, see www.raadvanstate.nl. 318 Ibid. See also above. 319 ABRvS 3 March 2010, LJN BL6245, published in English at www.raadvanstate.nl. See also above, II.

214 The Use of Foreign Law in Judicial Decision-Making profoundly influenced by the effects of globalisation in the legal sphere. International treaty regimes and domestic laws are becoming increasingly intertwined. Through the interpretation of treaty norms, the highest national courts play a mediating role in the guarantee of compliance of states with their treaty obligations. In light of this task of interpretation, the courts communicate with international and supranational courts. Moreover, in particular in the European context, the courts try to synchronise their interpretation of legal norms with the interpretations given by the national courts in other treaty states. Alongside this development of the judicial application of international law, the recourse of highest courts to comparative legal sources has taken more shape. This practice, in particular the study of foreign case law, fits naturally in the Anglo-Saxon tradition of judicial decision-making based on precedents. However, the trend of globalisation has given a new impulse to this practice. The Anglo-Saxon courts have broadened their comparative studies to include Western legal regimes outside of the common law tradition, and the highest courts in the civil law systems of France and the Netherlands have developed their own comparative practices. The United States is a notable outlier, in the sense that the judicial use of comparative law has become a subject of controversy and that the views and approaches of individual judges or nominees for appointment on the Supreme Court in this respect have been used to discredit them with the general public. Despite this controversy, the study of foreign legal sources is still regularly engaged in by several judges of the Supreme Court. One explanation for the development of the judicial use of foreign law in all of the five examined countries can be found in the experiences with foreign law which judges have obtained through their increased confrontation with international law. These experiences seem to have opened the eyes of judges regarding the usefulness and relevance of legal comparisons. In particular, many judges have come to recognise the similarities between legal norms and the inspiration which can be drawn from foreign experiences when national courts are faced with shared legal questions. Another explanation concerns the access to comparative legal sources, which has improved under the influence of digitalisation and available translation services. Using legal tradition, language and the prestige of foreign courts as their beacons, judges are exploring the possibilities of comparative law as an instrument for ensuring the quality of decisionmaking in difficult cases and to keep up with trends of transnational legal development. The described developments can be related to the constitutional, institutional and organisational arrangements concerning the highest national courts. In the examined legal systems, the constitutional status granted to binding and non-binding foreign law forms the point of departure for the judicial use of these sources. However, even though a theoretical distinction can be made between materials which are formally binding and materials

Conclusion

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which are not, the interviews reveal that the judges generally focus more on finding relevant arguments for their decision than on the formal authority of the source from which these arguments originate. This is particularly the case during the process of discovery of the law, in which arguments from comparative law are valued for the insights which they provide regarding the possible interpretation of the applicable law. In the process of justification of the decision, judges still look to binding legal sources first but they do sometimes mention additional arguments based on non-binding foreign legal sources. The institutional position of a highest court vis-à-vis other courts and vis-à-vis political institutions, both at the national and at the international level, have an influence on the possibilities of judges to engage in the use of foreign law. For example, the use of comparative law will be more natural for judges who often deal with human rights cases, a field of law which is generally considered to provide fruitful ground for legal comparison. Similarly, the participation of a highest court in a transnational legal order, such as the European Union or the ECHR, creates the necessity for a court to consider binding foreign legal sources and can create an incentive for this court to engage in transnational judicial dialogue about these legal sources. Although political, academic and public opinions can approve of or condemn the developed judicial practices, it seems that judges do not adapt their approach on the basis of such feedback. Rather, some judges engage in the academic and public debate with the aim of explaining their working methods and personal motivations. Concerning personal interests, it appears from the answers given in the interviews that a judge who is more aware of the global context and who considers it valuable to take account of foreign legal materials will use these materials more often and with a greater impact on his or her decision-making than a judge who is less aware of the global context or who does not consider it worthwhile to study foreign legal materials. At the organisational level, the possibilities to engage with foreign law are enabled or constrained by practical aspects, such as the availability of judicial assistance for the research of foreign law. Many of the interviewed judges indicated that they feel that the transnational context will become more important in the future. These judges stress the importance for the national highest courts to remain up to date and to reflect on their own position in the evolving global legal context. A judge of the US Supreme Court expressed the hope that there will be a ‘race to the top’, in the sense that comparative law will increasingly be used by courts in different jurisdictions. In this way, courts can work together to develop better legal solutions at the domestic and at the transnational level. The results presented in this chapter suggest that further consideration should be given to the methodology for the judicial use of foreign

216 The Use of Foreign Law in Judicial Decision-Making legal materials. Furthermore, in light of the requirement of legitimacy of judicial functioning it should be investigated to what extent the developed practices of the highest courts fit the legal framework in which these courts are functioning. In this regard, the described judicial practices can be related to the different national constitutional frameworks which govern the functioning of highest courts. This topic will be addressed in the next chapter.

6 Conclusion: Assessing the Development of Highest Courts’ Practices

O

N THE BASIS of the previous chapters, it appears that highest court judges in the United Kingdom, Canada, the United States, France and the Netherlands increasingly take notice of foreign legal sources and that they are searching for ways to accommodate the use of these sources in their decision-making. How did this development come about? Where will it lead to? Given the similarities between the adaptations in the practices of the highest courts in these five legal systems: could it be said that a convergence of judicial practices is taking place across national borders? An assessment of the development of judicial practices in the globalised legal context can be made in light of the constitutional-theoretical framework presented in Chapter 2. First, we will consider the development of the practices of the examined highest courts until now in light of the identified procedural and substantive explanatory factors of legal evolution, encompassed by the concept of ‘constitutional (in-)flexibility’. Secondly, these factors will be used to analyse the possible future development of the judicial decision-making of highest national courts. In this regard, some concluding remarks will be made concerning the trend of judicial internationalisation and concerning the lessons which can be drawn from the views and experiences of the interviewed highest court judges.

I CONSTITUTIONAL (IN-)FLEXIBILITY IN ACTION: PROCEDURAL AND SUBSTANTIVE EXPLANATIONS FOR THE DEVELOPMENT OF HIGHEST COURTS’ PRACTICES1

Two main reasons for the increased judicial recourse to foreign legal sources emerged from the description of judicial practices in Chapters 4 and 5. At 1 Part of this section is an adaptation of E Mak, ‘Understanding Legal Evolution through Constitutional Theory: The Concept of Constitutional (In-)Flexibility’ (2012) 4 Erasmus Law Review193.

218 Conclusion the constitutional and institutional level of judicial decision-making, the increased interconnections between legal systems have made it legitimate and interesting for the highest court judges to take account of foreign legal ideas and practices. Formal interconnections exist in the framework of international treaty regimes and in Europe in the context of the European Union and the European Convention on Human Rights (ECHR). Informal interconnections exist in the form of shared traditions or languages, or in the esteem for specific foreign courts. At the organisational and personal level of judicial decision-making, personal contacts between judges and the better availability of foreign legal materials have created a platform for the exchange of legal ideas and practices between the highest courts. These explanations for the development of the practices of the highest courts in the globalised context can be connected to the factors of legal evolution presented in Chapter 2. How does the constitutional framework of a specific national legal system enable the integration of transnational judicial practices into the accepted definition of the judicial function in that legal system? On the one hand, procedural explanations can be provided on the basis of a change of constitutional norms or of the interpretation of such norms. On the other hand, substantive factors related to the national legal characteristics might provide an explanation for the development of the practices of highest courts. These two types of factors will be addressed in the next pages. A. Procedural Explanations We will see, first, how the Constitution as a norm can be implicated in the accommodation of the effects of globalisation on the role of the highest national courts. Secondly, the analysis will address the accommodation of the changed role of the highest courts at the level of the interpretation and application of the Constitution. (i) Accommodating Change Through Constitutional Norms All of the examined legal systems encompass constitutional norms which regulate the implementation of international law into the domestic system, including norms concerning the role of the courts in this process of implementation. First, let us consider the constitutional accommodation of the judicial use of non-binding foreign law. This remains a debated issue in most Western legal systems. Certainly, the idea that it is interesting and legitimate for judges to study non-binding foreign law for comparative purposes is gradually taking hold within the highest courts in the examined legal systems.2 From the perspective of constitutional theory, we can describe this development as a process of gradual integration of a normative 2

See Chapters 4 and 5.

Constitutional (In-)Flexibility in Action 219 change at the level of non-codified constitutional conventions. The normative change here concerns the shift from an emphasis on formal authority to a focus on the substantive persuasiveness of legal arguments in judicial decision-making. It is this change which provides a constitutional basis for the judicial recourse to comparative law. However, in most of the examined legal systems, it remains unclear to what extent this normative change has been integrated into the Constitution or its underlying conventions. Only in a ‘younger’ liberal democracy than the ones studied in this book, namely, the Republic of South Africa, has the trend of judicial internationalisation been translated into a constitutional provision. This provision makes it mandatory for courts to take account of international law, and allows for the recourse to non-binding foreign law: 39. Interpretation of Bill of Rights (1)

When interpreting the Bill of Rights, a court, tribunal or forum— (a)

must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law.3

This provision should be considered in relation to South Africa’s transition to a liberal-democratic state. The possibility of the use of foreign law, introduced in the country’s first democratic Constitution, was considered to offer judges the opportunity to strengthen the authority of their decisions by citing judgments of prestigious courts in established liberal democracies.4 In the US legal system, by contrast, a counter-trend can be identified. Resistance to the influence of foreign law exists on the basis of the idea of American exceptionalism, which refers to ‘the special character of the United States as a uniquely free nation based on democratic ideals and personal liberty’.5 Moreover, legislative proceedings have been initiated in certain states to prohibit the courts in these states from using non-binding foreign law when deciding cases.6 In Arizona, a Bill was submitted which contained the provision that: A court shall not use, implement, refer to or incorporate any case law or statute from another country or a foreign body or jurisdiction that is outside of the 3

Constitution 1996 (South Africa), art 39. See, eg A Lollini, ‘Legal Argumentation Based on Foreign Law: An Example from Case Law of the South African Constitutional Court’ (2007) 3 Utrecht Law Review 1; U Bentele, ‘Mining for Gold: The Constitutional Court of South Africa’s Experience with Comparative Constitutional Law’ (2009) 37 Georgia Journal of International and Comparative Law 2. 5 I Tyrrell, ‘American Exceptionalism and Uneven Global Integration: Resistance to the Global Society’ in B Mazlish, N Chanda and K Weisbrode (eds), The Paradox of a Global USA (Stanford, CA, Stanford University Press, 2007). 6 ‘Bans on Courts’ Use of Sharia/International Law: Pennsylvania Bill Introduced’, Gavel to Gavel, 28 November 2011, available at gaveltogavel.us/site/2011/11/28/bans-on-court-use-ofshariainternational-law-pennsylvania-bill-introduced. 4

220 Conclusion United States and its territories in any decision, finding or opinion as either: 1. controlling or influential authority; 2. precedent or the foundation for any legal theory.7

The Bill specified that the ‘foreign body’ referred to includes the United Nations and the European Union.8 This Bill was held and has not been adopted yet.9 However, the introduction of similar Bills in many states in the United States is considered to constitute a sign of ‘misunderstanding and distrust of international law and foreign laws’.10 Other Western Constitutions, including those of Canada, France and the Netherlands, do not contain specific rules on the use of non-binding foreign law by judges. The development of this practice is thus left up to the judges themselves, within the general boundaries regarding judicial interpretation as expressed in the Constitution and its conventions.11 The age of the Constitutions of the examined legal systems is a factor to be considered in this regard. Provisions concerning the application of binding international law are included in more recent Constitutions, such as the French Constitution of 1958 and the Dutch Constitution of 1983. Such specific provisions are lacking in older Constitutions, such as the United States Constitution. Similarly, the increased judicial use of non-binding foreign law seems to be too recent to have been included in many Constitutions as yet. This absence of formal constitutional accommodation might also be related to the high threshold in many legal systems concerning constitutional revisions.12 In the United Kingdom, which does not have a codified Constitution, a guideline for judges concerning the use of non-binding foreign law is provided by the Practice Direction (Citation of Authorities), issued by the Lord Chief Justice for England and Wales. This document can be considered to express certain conventions which have developed in the British legal system concerning the proper exercise of the judicial function. The Practice Direction contains a provision which holds that: Cases decided in other jurisdictions can, if properly used, be a valuable source of law in this jurisdiction. At the same time, however, such authority should not be cited without proper consideration of whether it does indeed add to the existing body of law.13 7

Bill HB2582 (Arizona Foreign Decisions Act 2011), art 12-181. Ibid. 9 Arizona House of Representatives Committee on Rules, ‘Minutes of Meeting’ (14 March 2011), available at www.azleg.gov. 10 A Fellmeth, ‘International Law and Foreign Laws in the US State Legislatures’, ASIL Insights, 26 May 2011, available at www.asil.org. 11 See below, IB. 12 See Chapter 2, IIB. 13 [2001] 1 WLR 1001. See Chapter 4, IIIA. 8

Constitutional (In-)Flexibility in Action 221 Interestingly, the trend of globalisation appears to have had an impact not only on the functioning of the highest national courts, as institutions of government, but also on the significance of national Constitutions, as the basis for the safeguarding of the fundamental values of national legal systems. In this regard, the proliferation of transnational legal regimes has been accompanied by a counter trend concerning the strengthening of national legal borders. Vicki Jackson has argued that: the growth of the transnational may elicit reactive resort to specifically national constitutions to demarcate a now more contested sphere of national identity and decision-making. Thus, part of the story [meaning the ‘“script” of modernity’14] has to do with the more specific roles, functions, and attractions of national constitutions.15

This renewed emphasis on the national Constitution can be identified, for example, in the United States. Concerning the enforcement of binding foreign law in domestic judicial proceedings, legislation has been introduced which imposes the priority of US federal and state constitutional law in case of conflicting rights provisions. An amendment to the Arizona Revised Statutes was adopted, introducing the following provision: 12-3103. Prohibited enforcement of foreign law A court, arbitrator, administrative agency or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the Constitution of this state or of the United States or conflict with the laws of the United States or of this state.16

Emphasis on national constitutional values is also apparent in the 2010 report of the State Committee in the Netherlands, which advised on the function and meaning of the Dutch Constitution. This Committee was chaired by Judge Wilhelmina Thomassen, who was a judge of the ECtHR between November 1998 and November 2004 and a judge of the Hoge Raad from November 2004 until 1 January 2012. The State Committee, inter alia, considered adding a general provision to the Constitution, which would express the liberal-democratic character of the Dutch state, the respect and guarantee by the Dutch government of human dignity,

14 T Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge, Cambridge University Press, 2003) 26, quoting JW Meyer et al, ‘World Society and the Nation State’ (1997) 103 American Journal of Sociology 1. 15 VC Jackson, Constitutional Engagement in a Transnational Era (Oxford, Oxford University Press, 2009) 3. 16 Bill HB 2064, signed by the Governor of Arizona on 12 April 2011, available at www. azleg.gov. As another example, see Arkansas SJR 10 (Constitutional Amendment), available at www.arkleg.state.ar.us. The amendment was adjourned sine die in April 2011; see SB 97 (Ark 2011).

222 Conclusion fundamental rights and fundamental legal principles, and the value of the rule of law.17 The Committee was divided on the question whether the guarantee of constitutional rights and principles should be reinforced by adding conditions to the Constitution regarding the judicial application of international law.18 Finally, the reinforcement of national constitutional values can be detected as a motive underlying recent criticism of the ECtHR in the United Kingdom and the Netherlands. The legitimacy of the Strasbourg Court has become a matter of debate in light of the growing influence of this Court on domestic law. This influence is particularly big in legal systems which do not allow for the judicial review of parliamentary acts in light of constitutional norms. Faced with this restriction, judges in the monist legal system of the Netherlands have used the ECHR and the case law of the ECtHR to ensure conformity of national legislation with fundamental rights law. In the United Kingdom, the Human Rights Act (HRA) 1998 has given judges the competence to declare the incompatibility of parliamentary acts with the implemented provisions of the ECHR.19 In both legal systems, critics of the ECHR regime and especially of the ECtHR have advanced that the national constitutional values concerning the protection of human rights are currently being neglected in favour of the European human rights law.20 Important arguments in this discussion are: (1) that national constitutional provisions might provide a better protection of human rights than the provisions of the ECHR, meaning a higher level of protection or the guarantee of rights which are not included in the ECHR; and (2) that the national constitutional norms, if ‘outshined’ by the European human rights provisions, risk losing even their symbolic value within the national legal system. In the Netherlands, these concerns have informed the debate of the State Committee, which was mentioned above, concerning the reinforcement of the guarantee of constitutional rights vis-à-vis the application of international and European human rights provisions. The provided examples clarify that national Constitutions form an important locus for the integration of normative changes induced by globalisation, including changes concerning the judicial function. The Constitution

17 Staatscommissie Grondwet, Rapport Staatscommissie Grondwet (The Hague, 11 November 2010), 40, available at www.rijksoverheid.nl/documenten-en-publicaties/rapporten/ 2010/11/11/rapport-staatscommissie-grondwet.html. 18 Ibid 128. Following up on the report, the current Dutch government has decided to propose only a minor constitutional amendment (regarding art 13 of the Constitution); Letter of the Minister of the Interior and Kingdom Relations, 24 October 2011, available at www.rijksoverheid.nl/onderwerpen/grondwet-en-statuut/documenten-en-publicaties/ kamerstukken/2011/10/24/kabinetsreactie-advies-staatscommissie-grondwet-11-november2010.html. 19 See Chapter 5, IA. 20 See Chapter 4, IB and Chapter 5, IIA.

Constitutional (In-)Flexibility in Action 223 can explicitly prescribe or prohibit the use of international and comparative law, and it can regulate the priority attributed to domestic law in relation to these foreign legal sources. The Constitution can also remain silent and thus leave space for judicial discretion concerning the use of non-binding foreign legal sources. The introduction of constitutional amendments regarding these issues appears to be influenced by developments in the political or societal context of a state. In this regard, the presented research of five legal systems suggests that a constitutional amendment regarding the use of international or comparative law will only be taken into consideration when very significant developments occur in the political or social life of the concerned national community.21 This conclusion corroborates the predominant convention that the Constitution should guarantee the stability of the government and, therefore, should not be revised too often.22 This analysis of the first and second factors of constitutional (in-)flexibility, concerning the detail of constitutional norms and the modalities for the revision of these norms, shows how the internationalisation of judicial practices is enabled or constrained at the level of the Constitution. A second part of the explanation for the development of institutional legal arrangements under the effects of judicial globalisation concerns the argumentative framework for judicial decision-making. (ii) Accommodating Change Through Constitutional Interpretation Further insight into the development of judicial practices under the effects of globalisation flows from an analysis of the third and fourth factors of constitutional (in-)flexibility, namely, the approach to constitutional interpretation and the impact granted to international law in national legal systems. In this regard, first, the research clarifies that both national judges and national legislators have influenced the development of the constitutional rules and conventions regarding the judicial function. This influence concerns in particular the balance of powers between the judiciary and the legislator, and the use of international and comparative law by judges. Secondly, the increasingly important role of transnational legal regimes, such as the ECHR regime, has triggered the engagement of judges in processes of legal harmonisation across national borders. Concerning the interpretation of the constitutionally defined judicial function, it seems that the meaning of this function is sometimes altered by 21 Regarding the United States, see M Rosenfeld, Principle or Ideology? A Comparativist Perspective on the US Controversy over Supreme Court Citations to Foreign Authorities, Cardozo Legal Studies Research Paper No 213 (2008), available at ssrn.com/abstract=1081854 (addressing the influence of constitutional and national identity on the acceptance of the judicial use of foreign law). 22 See Chapter 2, IB.

224 Conclusion the judges themselves, often in an implicit manner. The US Supreme Court’s recognition, in Marbury v Madison, of the judicial competence to exercise constitutional review of legislation is a famous example of such judicial self-determination.23 In Canada, the Supreme Court has acknowledged constitutional flexibility in its definition of the judicial function, too, inter alia, through the development of a ‘pith and substance analysis’ concerning the division of powers between legislative bodies. In an analysis of this kind, the courts will assess whether the purpose and effects of legislation fall within the scope of the legislator’s competence. In that situation, the courts will declare the legal provisions in question valid.24 The ‘pith and substance’ doctrine was developed by the Supreme Court of Canada, which this way contributed by itself to the determination of the scope of judicial review. In a similar vein, judges in the examined highest courts are increasingly seen to redefine their judicial function by embracing the idea that non-binding foreign legal sources can be considered in judicial deliberations. In the British legal system, for example, this idea underlies the Practice Direction (Citation of Authorities) for England and Wales, which contains an instruction on judicial interpretation.25 However, some national Parliaments have sought to reduce the leeway of the courts to define their own function. With regard to the trend of globalisation, including the proliferation of international treaty law, such a limitation can concern the judicial role in the determination of the impact of international law at the domestic level. In the Netherlands, for example, a reform of the balance of powers between the legislative and judicial branches was proposed in the legislative Bill submitted to the Dutch Parliament in September 2012 by the Member of Parliament Joost Taverne. This Bill has as its objective to limit the judicial competence to assess the conformity of parliamentary acts with international treaties that are binding on the Netherlands. Instead, Parliament should take a more active role in this assessment by checking legislative provisions in light of international treaty law before these provisions are enacted.26 Yet, taking into account the difficulty of altering the Dutch Constitution,27 it is unlikely that a Bill proposing this kind of fundamental change will receive sufficient support from the Dutch Parliament. Interestingly, the worldwide increased emphasis on the protection of human rights has opened the doors to the development of alternative mechanisms of judicial review of parliamentary acts in legal systems which

23

Marbury v Madison, 5 US (1 Cranch) 137 (1803). See Chapter 3, IA. An interviewed judge mentioned two examples: Canadian Western Bank v Alberta [2007] 2 SCR 3; Reference Re Securities Act [2011] 3 SCR 837. 25 [2001] 1 WLR 1001 (Sup Ct). See above. 26 Kamerstukken II 2011–2012, 33 359. 27 See Chapter 2, IIB. 24

Constitutional (In-)Flexibility in Action 225 traditionally endorsed the unassailability of Acts of Parliament. In the Netherlands and in France, international treaty law has been used for this purpose. Eventually, the development of treaty review has prepared the ground for the introduction of constitutional review in individual cases in the French system.28 In the United Kingdom, the mechanism of the HRA 1998 has resulted in a more powerful judicial role, too, in the sense that a declaration of incompatibility will put significant pressure on the Parliament to bring legislation in line with the human rights provisions of the ECHR. The introduction of this mechanism only received sufficient political and societal support after a long and gradual process of normative change at the level of the constitutional conventions of the British legal system, resulting in the acceptance of the judicial role in human rights protection against the Parliament.29 The increasingly important role of international law in national legal systems has brought about another fundamental normative change, which concerns the judicial interest to engage in processes of transnational legal harmonisation. In this respect, the ECHR can be identified as a major influence, both in Europe and across the Atlantic Ocean. First, the application of treaty provisions by national courts has been the motor behind the development of harmonised human rights protection across Europe. In this context, the highest national courts are involved in the development of the national law on the basis of the ECHR, on the basis of the case law of the ECtHR, and on the basis of exchanges of ideas with judges in other states which are parties to the treaty. This transnational engagement facilitates the convergence between national laws, and it clarifies the role of international law in the process of legal development at the national level.30 The interviewed judges in the United Kingdom, France and the Netherlands acknowledged the impact of ECHR and EU law in their decision-making, and the change of attitude which this internationalisation of the domestic law has inspired in their courts.31 Secondly, the process of legal integration in Europe has served as an inspiration for the Supreme Courts of Canada and the United States. The interviewed judges of these Courts indicated that they had drawn lessons from the decision-making of the ECtHR, in particular concerning the judicial approach to the limitation of rights.32

28 See Chapter 3, IIA, and Chapter 5. See also M de S-O-l’E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009). 29 T Bingham, The Rule of Law (London, Allen Lane, 2010) chs 7 and 12. See Chapter 2, IIB. 30 See also Jackson, Constitutional Engagement (n 15) (arguing that possible attitudes towards globalisation include resistance, the aim of convergence and the aim of engagement with foreign law). 31 See Chapter 5. 32 Ibid.

226 Conclusion On a different note, we advanced in Chapter 2 that the accommodation of normative change through constitutional interpretation can also be promoted by judicial ‘philosophies’ concerning the scope of discretion in the decision-making in difficult cases. The analysis in Chapters 4 and 5 shows that, in the absence of specific constitutional guidelines, certain judges have indeed developed a personal approach to the use of non-binding foreign law. We saw that a very open approach to comparative legal influences is advocated by Justice Aharon Barak, the former President of the Supreme Court of Israel.33 By contrast, Justice Antonin Scalia of the US Supreme Court has vehemently condemned the judicial search for inspiration outside of the national legal framework.34 Depending on the approach which is predominant amongst the judges in a specific legal system, in particular in the highest courts, non-binding foreign law will either be enabled or constrained in becoming a source of inspiration for the judicial decisionmaking of this legal system. The overview of judicial practices in Chapter 5 revealed that similarities and differences exist between the use of nonbinding foreign sources by the highest courts on the basis of three factors: (1) national legal tradition; (2) knowledge of languages and of foreign legal systems; and (3) the prestige which is granted to specific foreign courts. In sum, at the level of the interpretation and application of the Constitution, the development of judicial practices under the effects of globalisation is visible in the gradual adaptation of the interpretative approaches of individual judges and of the highest courts as a whole. In each legal system, this adaptation is either enabled or constrained by the constitutional norms and conventions regarding the process of judicial decision-making, in particular concerning the relationship between the judiciary and the legislative branch of government. Furthermore, the exchange of legal ideas across national borders is stimulated by the impact of international law and the case law of international courts upon domestic legal systems. This development has obliged judges in member states of international or European legal regimes to engage in discussion about uniform application or harmonisation of laws within the scope of these treaty regimes. More generally, the engagement of judges in transnational judicial dialogue aimed at a uniform approach has also stimulated the judicial interest in the study of non-binding foreign law in fields of law where harmonisation is not an objective. Similarities and differences between the examined highest national courts relate to the constitutional arrangements concerning the judicial function, in particular the arrangements concerning the judicial review of legislation and concerning the status of international law in the domestic hierarchy of norms. Similarities and differences also relate to national constitutional

33 34

See Chapter 4, IIB. Ibid.

Constitutional (In-)Flexibility in Action 227 culture, in the sense that judges in some legal systems make more use of the leeway granted to shape their own role than judges in other legal systems. Still, the personal beliefs and background of judges seem to be an important additional factor in this regard. These personal characteristics can explain the differences between the approaches to judicial interpretation of members of the same highest court, which can be very diverse. We will further consider this aspect in the next section. For now, we can conclude that the analysis of the procedural aspects of constitutional (in-)flexibility has offered a partial explanation concerning the form and speed of the development of judicial practices in national legal systems under the effects of globalisation.

B. Substantive Explanations The qualitative analysis of the views and experiences of highest court judges can be connected with the hypotheses formulated in Chapter 2 concerning the substantive aspects of legal evolution in national legal systems. This leads us to the following observations. (i) Democratic Justification of Judicial Decisions How does the authority of legal sources in a specific national legal system affect their use in judicial decision-making in this legal system? How do the approaches of judges to decision-making in the globalised legal context relate to the classification of globalist and localist views? In Chapter 2, the assumption was presented that the use of both international and comparative law might be more easily accepted in monist legal systems or in member states of a supranational legal order, such as the European Union. We further posited that the difference in approaches of highest court judges regarding the use of non-binding foreign law might be explained in light of the distinction between globalist and localist views on judging. In this regard, reference was made to Vicki Jackson’s classification of judicial postures of resistance, convergence and engagement vis-à-vis the transnational context.35 Concerning the characteristics of a legal system, the research clarifies that the existence of a monist or a dualist mechanism for the implementation of international law influences the use of international and comparative law to a lesser extent than might have been expected on the basis of the traditional distinction between binding and non-binding sources of law in national legal systems. In the globalised legal context, legal regimes are increasingly

35

Jackson, Constitutional Engagement (n 15).

228 Conclusion intertwined, leading to overlap between the content of legal norms of different origins—international, supranational and national. In this context, many of the interviewed judges consider that the reference to legal sources in judicial decision-making should focus on the substance of these sources and on the persuasive arguments which can be found in these sources for the deciding of the case at hand. In other words, the usefulness of comparative legal research and the engagement in a transnational judicial enterprise of uniform application of shared legal rules are underlined. The participation of a state in a supranational legal order, such as the European Union, enhances the sense of urgency which judges in this member state feel with regard to the study of foreign legal sources. On the one hand, the judges are obliged to apply the binding legal rules of this supranational legal order. On the other hand, the participation in the supranational legal order provides a motive for the study of non-binding foreign legal sources, for example, the case law of national courts in other member states concerning the interpretation of the supranational law. These observations are confirmed by the views expressed by the interviewed judges in the highest national courts of the United Kingdom, France and the Netherlands. In Canada and the United States, by contrast, binding international law features in judicial decision-making on a more modest scale than in Europe.36 The most important motive of judges in North America regarding the consultation of comparative law concerns the personal choice for a globalist or a localist approach to judicial decision-making. In the examined European legal systems, this motive plays a role, too. In these systems, the personal approach of judges transpires most clearly from their views concerning the study of non-binding foreign law in cases concerning purely domestic legal questions, such as cases in the field of tort law or criminal law. The judicial approaches are shaped on the basis of the legal education and professional and personal experiences of judges. These approaches are closely connected with national legal culture. In the Canadian legal system, which contains English as well as French influences, an open approach to foreign law is natural. The same is true for the Dutch legal system, which has been influenced by French and German law. Moreover, the legal culture of a small country such as the Netherlands appears to contain more openness to foreign law than the legal culture of big countries such as the United Kingdom, the United States and France. Indeed, judges in the big legal systems traditionally consider that they have a role in informing legal development in other legal systems rather than an interest in taking inspiration from these foreign legal systems. Still, the judicial approaches can vary between judges of the same highest court. Differences between judges in the same country relate to: (1) professional experiences with foreign cultures

36

See Chapter 5, IIA.

Constitutional (In-)Flexibility in Action 229 and foreign languages, for example, through studying or working abroad; and (2) personal experiences with foreign cultures and foreign languages, for example, through family relations.37 Vicki Jackson’s classification of judicial postures of resistance, convergence and engagement provides a framework for assessing the motives which underlie a judge’s choice for either a globalist or a localist view regarding the use of comparative law in judicial decision-making. The research presented in Chapters 4 and 5 revealed that only a few judges in the examined highest courts are absolutely against the study of nonbinding foreign law. Indeed, the arguments of judges with a localist view differ. Judges who take an absolutely resistant posture oppose the use of non-binding foreign legal sources on the basis of the absence of formal authority of these sources within the jurisdiction of their highest court. US Supreme Court Justice Antonin Scalia, who has expressed his views in dissenting opinions, speeches and publications, is perhaps the most wellknown proponent of this view. He has argued that the citation of foreign law in judicial reasoning cannot be considered to be merely of a supportive nature besides the reasoning based on the national law. In his view, if the Supreme Court acknowledges foreign support for a specific interpretation of the law, it grants to the foreign law the value of an authoritative source for its decision-making.38 Other localist judges do not contest the use of foreign law in judicial deliberations as such. However, they are doubtful about the guidance which might be derived from the study of foreign law. These judges emphasise that judgments handed down in foreign jurisdictions cannot provide specific solutions for domestic cases, because of the differences between legal systems based on the national legal culture.39 In this respect, the time-consuming nature of comparative legal research might be an additional reason for abstaining from an inquiry into foreign legal sources. Globalist judges appear in two types. Most of the judges included in the current study are not absolutely in favour of striving for convergence with the laws of other countries or with international law. Indeed, and befitting the balanced nature of the judicial function, the majority of the judges have a nuanced approach regarding the use of non-binding foreign law in judicial decision-making. These judges fit the posture of engagement with foreign law. Still, the judges expressed different degrees of willingness to engage with global influences. This willingness seems to be related to the perceived usefulness of comparative legal sources in the decision-making in concrete cases. The mentioned limitations of comparative legal research for the judgment of concrete cases echo the criticism expressed by localist judges. However, globalist judges underline the inspiration which foreign concepts 37 38 39

See further Chapter 4, IIB. Ibid. Ibid.

230 Conclusion and solutions can bring for the decision-making in difficult cases and cases of public importance. The yardstick or example provided by foreign case law can help judges to find a solution or support for their decision. The globalist judges feel that this can strengthen the judicial reasoning and enhance the public trust in the court’s judgment. Moreover, these judges are of the opinion that the study of non-binding foreign law can assist them in making sure that their standards for decision-making are of the same quality as those of their foreign peers. Finally, the study of non-binding foreign law for comparative purposes is considered useful for assessing whether a domestic judgment would be following general trends in the development of the law in other Western legal systems.40 Interestingly, no clear distinction can be identified between the influence of globalisation on the practices of supreme courts and the practices of constitutional courts. The analysis in Chapter 5 clarified that this relates to the fact that the use of non-binding foreign law often occurs in hard cases, meaning cases in which judges need to exercise discretion in order to reach a judgment.41 In this regard, both final appeal cases and constitutional review cases can be the object of political criticism and societal unrest. Controversial judgments are likely to entail criticism, which might include a public condemnation of the use of comparative law. Indeed, the research has clarified that critics of a specific judgment might point to the use of foreign legal materials as the cause of what they consider to be an ‘erroneous’ judgment of the highest national court.42 (ii) Legal Tradition and the Nature of Cases: Contextual Factors for the Use of Foreign Law Chapter 2 contained the hypothesis that the use of foreign law is influenced by the legal tradition in which a highest national court in a Western legal system exercises its tasks, meaning the common law tradition or the civil law tradition. We also considered that the nature of a case, for example, the occurrence of an international aspect, might influence the use of foreign law by highest national courts. As it turns out, both these elements constitute contextual factors which have an influence on the use of foreign law by the examined highest courts. Based on the analysis in Chapter 5, the following conclusions can be drawn. Concerning legal tradition, it seems that the doctrine of precedent, which is typical for the common law tradition but not for the civil law tradition, has only a limited influence on judicial practices regarding the reference 40

See further Chapter 5, in particular IIIA. A Barak, The Judge in a Democracy (Princeton, NJ, Princeton University Press, 2006) 118. See also R Dworkin, Law’s Empire (Oxford, Hart Publishing, 1998, original edn 1986). 42 See Chapter 5, IB. 41

Constitutional (In-)Flexibility in Action 231 to non-binding foreign case law. Indeed, it appears that most of the interviewed judges, when judging difficult cases, are more concerned with the persuasive force of legal arguments than with the formal source from which these arguments derive. In this sense, the authority of legal sources in the decision-making of the highest courts does not depend so much on the formally binding or non-binding nature of these sources.43 Rather, judges consider the persuasiveness of legal arguments which were developed in non-binding foreign legal materials, for example, the arguments discussed in the case law of other Western courts regarding a similar legal matter as the domestic case which needs to be decided. Interestingly, a relevant difference between the examined Anglo-Saxon courts and continental-European courts relates to the style of judicial reasoning. The interviewed French and Dutch judges pointed out that the citation of case law as such is rare in the judgments of their highest courts. For reasons of tradition and the requirement of a unanimous decision, judgments in these civil law systems tend to be relatively short. In this light, the citation of foreign law would be exceptional. Indeed, some interviewed judges felt that the reasoning of a judgment might be weakened because of possible criticism of the highest court’s use of foreign law, for example, with regard to the scope and relevance of the legal comparison with other jurisdictions. The citation of foreign legal materials is more easily accepted in the Anglo-Saxon courts, which stand in the tradition of law development through case law and which permit individual judges to issue their own opinion on cases. A question of concern amongst judges in these courts is the question of whether a presentation of foreign law in the court’s reasoning should consist of a ‘full’ discussion of all materials found or whether the court is allowed to mention only those foreign references which support its own decision. British judges have indicated that they do not find the latter approach problematic, while some American judges have criticised the use of foreign law if it consists of ‘cherry picking’. Still, these judges seem to agree on the point that the discussion of foreign law in the judicial deliberations should be as comprehensive as possible.44 Finally, legal tradition plays a role in the selection of non-binding foreign legal materials for comparison by a specific highest national court. The genealogical relation between the legal systems of the United Kingdom, Canada and the United States makes it more natural for the highest courts in these systems to look to each other for inspiration than to legal systems which do not share this British origin. The exchange between courts in these jurisdictions, furthermore, is made easier by their shared language. The French and Dutch highest courts, by contrast, most often study foreign

43 44

See above, IB(i). See Chapter 5, IIIA.

232 Conclusion sources which originated in other civil law jurisdictions. The Dutch courts consider that the French and German influences in the Dutch legal system provide reasons for looking to these systems first when engaging in a comparative legal study. Besides language, all interviewed judges also take into account the prestige of specific foreign courts when selecting case law for a legal comparison.45 The interviews clarified that the nature of cases plays a role in the judicial use of foreign law in two ways. First, judges can be required to study foreign law in cases in which binding international or European legal sources are involved. This study can concern the interpretation of the international or European sources, which have become sources of the domestic law through their implementation in the national legal system. Moreover, this study can include an analysis of the case law of other national courts concerning the interpretation of the international or European sources. Secondly, the study of foreign law can be a requirement in cases in a specific field of law, such as international private law cases or extradition cases. However, the use of foreign law is certainly not restricted to cases which by their nature require of judges to engage in such an exercise. Many of the interviewed judges pointed out the usefulness of a comparative analysis of non-binding foreign legal materials for the judgment of difficult cases, in which no precedent existed in the national legal system. These conclusions confirm the hypotheses formulated in Chapter 2. The examples from case law, presented in Chapter 5, also give further insight into the rich palette of cases in which judges in the examined highest courts have made use of both binding and non-binding foreign law.46 At the same time, the analysis of the judicial experiences clarified that so far no systematic approach has been developed with regard to the use of comparative legal sources in the judicial decision-making of the highest courts.47 (iii) Effectiveness and Efficiency of Judicial Decision-Making The final idea advanced in Chapter 2 was that the use of comparative law by highest national courts might be subject to constraints regarding the effectiveness and efficiency of judicial decision-making. Indeed, the analysis in Chapters 4 and 5 confirmed that judges take into account the costs, in terms of time spent on the research and study of foreign legal materials, and the benefits of this exercise, in terms of useful concepts and arguments for their decision in a domestic case. The research provides helpful information to add further nuance to this conclusion.

45 46 47

Ibid. See Chapter 5, II. See Chapter 5, III.

Constitutional (In-)Flexibility in Action 233 The costs of the comparative exercise, first, vary for judges depending on: (1) the assistance which they can make use of for this research; (2) their personal affinity with and ability to conduct comparative legal research; and (3) the accessibility of foreign legal sources, for example, through databases, judicial networks and personal contacts. The availability of judicial assistance differs between the examined highest courts, as do the possibilities of commissioning universities to carry out comparative legal research. An important distinction exists between the proceedings before the Anglo-Saxon courts, in which the legal counsel of a party has an important responsibility in bringing the relevant legal sources to the attention of the court, and the proceedings before the highest courts of France and the Netherlands, in which the judges themselves and Advocates-General or commissaires du gouvernement have a role in the research of relevant legal materials for the deciding of the case. The ability of judges to conduct comparative research, and the accessibility of sources, are related to the legal training and experience of the judges as well as to their involvement in transnational judicial exchanges. In sum, both organisational and personal factors in highest courts have an influence on the costs of using comparative law in judicial decision-making.48 Concerning the benefits of the study of non-binding foreign law, a clear relation exists with the postures of judges concerning the role of their highest court in the globalised legal context.49 Globalist judges consider the study of foreign law to be more useful for their court’s decision-making than localist judges. For this reason, depending on personal affinity and ability, globalist judges will engage in the study of foreign law more readily than their localist counterparts. Interestingly, the approaches of judges of a similar mind but working in different highest courts might be closer to each other than the approaches of two judges on the same highest court but holding opposite views on the usefulness of the study of foreign law.50

C. Conclusion The analysis in this chapter reveals that the described trend of globalisation has an influence at the most fundamental level of legal systems, that of the Constitution and its underlying conventions. The research presented in the previous chapters had already made clear that this trend is affecting the practices of highest courts in liberal democracies on a significant scale. It has now been clarified that the constitutional rules and conventions of national legal systems, as well as the approaches of individual judges, are 48 49 50

See further Chapter 4, III. See above, IB(i). See Chapter 4, II and III.

234 Conclusion implicated in this changing role of the highest national courts in the globalised legal context. A question to be tackled next concerns the further development of judicial internationalisation in this current, swiftly evolving legal context. This book’s description and analysis of the views and experiences of highest court judges aims to provide some guidance and inspiration in this respect.

II. EPILOGUE: THE FUTURE OF JUDICIAL INTERNATIONALISATION

In the interviews conducted for this research, judges were asked how they picture the future of their highest court in a globalised legal context. What are the possibilities and risks related to the further development of the judicial function in the globalising world? Will the working methods of the highest national courts, including the use of foreign law in the decisionmaking of these courts, become more similar across national borders? Let us consider the views of the interviewed judges as well as possible scenarios regarding the future development of the law in the examined Western legal systems.

A. Judges’ View of the Future The reflections of the judges on the future role of their highest court in the globalised legal context included thoughts on the constitutional, institutional, organisational and personal aspects of judging. Whereas judges in the examined European legal systems seem to be particularly concerned with the future of legal integration in the framework of the European Union and ECHR, the Canadian and US judges who participated in this research emphasise the increasing convergence of legal instruments at the global level and the challenge of developing harmonised legal rules of the highest quality across national borders. Judges in all of the examined courts mentioned the importance for the highest national courts to keep up with changing societal expectations concerning the organisation and transparency of judicial proceedings. In Europe, judges in different highest courts felt that the development of the role of the highest national courts will depend in an important manner on the competence of these courts concerning the protection of fundamental rights in the evolving ‘multi-level’ legal context. An issue to be addressed in this regard concerns the interaction between national, European and international fundamental rights provisions. A Dutch judge observed that a stronger constitutional protection of national fundamental rights might be required to safeguard fundamental constitutional values. Recent concerns

Epilogue: The Future of Judicial Internationalisation 235 in this regard have arisen in the Netherlands, and also in other European countries, in light of the increasing influence of EU law and the ECHR at the national level.51 In the Netherlands and in the United Kingdom, particular criticism has been voiced regarding the ECtHR, which is considered by some to have gained too much influence in national legal systems.52 The possibility of constitutional review of legislation, which exists in France, Germany and many other European countries, but not in the Dutch legal system or in the United Kingdom, seems to be a good solution to ensure the interpretation and application of such reinforced national fundamental rights.53 Indeed, highest courts which have competence for this review, in particular the German Bundesverfassungsgericht, have demonstrated to be able to play a very meaningful role in fundamental rights protection.54 The competence of constitutional review in human rights cases also affects the institutional position of a highest national court, at the national level as well as in the global legal context. A judge of the UK Supreme Court thought that the role of this Court in the British legal system would not change unless certain fundamental rights are entrenched. Then, the judges would have the competence to strike down parliamentary acts which conflict with these rights. Interestingly, such a development would also make the case law of the British highest court more interesting for judges in other jurisdictions. A Canadian judge pointed out that the UK Supreme Court has already become a more important source of inspiration for the Supreme Court of Canada since the enactment of the HRA 1998. The exchange of information between highest courts might further be encouraged by the increase of legal instruments developed at the international level. In this regard, some judges indicated that the judicial role in the enforcement of transnational private regulations might become more important.55 Several judges further mentioned the increased visibility of highest courts in the national society and the need for judges, in this respect, to consider requirements of transparency and efficiency of judicial decision-making. The hearings of the UK Supreme Court and the Supreme Court of Canada are broadcast online or on television.56 Some courts further publish messages to the public through the new social media, such as Twitter.57 Many of the interviewed judges regularly speak in public about a wide variety

51

See Chapter 4, IA. Ibid. 53 In this sense Staatscommissie Grondwet, Rapport Staatscommissie Grondwet (2010). 54 See Chapter 4, IA. 55 On this topic, see F Cafaggi (ed), Enforcement of Transnational Regulation: Ensuring Compliance in a Global World (Cheltenham, Edward Elgar Publishing, 2012). 56 See for the UK Supreme Court news.sky.com/info/supreme-court. 57 See for the UK Supreme Court twitter.com/uksupremecourt, and for the Dutch Hoge Raad twitter.com/hogeraad. 52

236 Conclusion of topics.58 With an aim to increase efficiency, the Dutch Hoge Raad has introduced a system of case selection which encompasses aspects of the selection systems used by the Anglo-Saxon highest courts.59 Coordination between highest courts through informal contacts and judicial networks is considered to be another measure to increase the effectiveness and efficiency of the functioning of the highest courts in the globalised world.60 Furthermore, judges in several of the highest courts felt that the efficiency of their decision-making could further increase if a specialised supreme court bar were established. The judges seemed to find it difficult to estimate how the personal approaches to judging in the highest courts will develop in the future. In Britain, some judges and academics have suggested that changes in the decision-making of the UK Supreme Court might occur after the last Law Lords have retired and the Court is fully composed of Supreme Court Judges. Judges in the British, French and Dutch courts also mentioned the possible future effects of the more thorough training in EU law which currently exists in the law schools. In sum, these observations clarify that most of the interviewed judges see possibilities for the further development of the judicial practices of highest national courts in the globalised legal context. Concerning this process, the judges display an interest to learn from the experiences of their counterparts in other Western legal systems. These experiences can inform the adaptation of internal working methods to enable highest courts to focus more on their role in the development of the law and to make more effective and efficient use of comparative law in judicial decision-making. Furthermore, the practices of foreign courts can serve as an example to highest courts concerning the involvement in transnational judicial dialogue with foreign, supranational and international courts. This exchange of ‘best practices’ could result in a further convergence of judicial practices between highest courts in Western legal systems. Indeed, the analysis in this book has yielded indications of a trend of convergence in the development of the practices of highest courts up to now.61 Most of the interviewed judges seem to think that this trend will continue in the future. In order to assess this view, we will finish our analysis with a consideration of possible scenarios for the future development of the law and of transnational judicial communication in the Western world.

58 59 60 61

See See See See

examples mentioned in Chapters 4 and 5. Chapter 3. Chapter 4, IA and IIA. Chapter 4.

Epilogue: The Future of Judicial Internationalisation 237 B. Possible Scenarios for the Future The actual development of the role of Western highest courts in the future depends to a large extent on the further development of national legal systems as such. Scenarios for the ‘global legal environment’ have been developed by the Hague Institute for the Internationalisation of Law (HiiL) on the basis of input from experts from politics, legal practice and academia.62 The research presented in this book was part of this input, and this research was partly developed in cooperation with a select group of researchers in the Highest Courts Project conducted under the auspices of HiiL.63 Two uncertainties form the basis for the HiiL scenarios for the future: the internationalisation of the law might continue or it might reverse, and laws might be created predominantly by public authorities or increasingly through private legal regimes.64 In the four scenarios which were elaborated by HiiL on the basis of these two variables, different roles of the highest courts emerged. In an internationalised public legal context, the courts would obtain a more substantial role in the application of international legal rules at the local level (Global Constitution scenario). In a renationalised public legal context, the role of highest national courts as guardian of the fundamental constitutional values of the national legal system would be reinforced (Legal Borders scenario). An internationalised and privatised legal context would accommodate a role of the highest national courts, next to private actors, in the enforcement of transnational private law (Legal Internet scenario). The development of a renationalised and privatised legal context seems unlikely (Legal Tribes scenario). In this scenario, the highest national courts would have only a limited role in the national legal context, and would have to compete in this context with private dispute settlement mechanisms.65 When considering these scenarios, it seems that the further development of the judicial use of foreign law is most likely to occur in the Global Constitution scenario or in the Legal Internet scenario. Indeed, the internationalisation of the law, in the sphere of public or private rule-making, could lead to a further systematisation of the law across national borders. This development would increase the need for the exchange of legal ideas and experiences in order to ensure the uniform application of legal rules. Moreover, judges would be provided with a more solid framework for this exchange. In the Legal Borders scenario, too, the highest courts might still make use of foreign inspiration for the interpretation of national legal

62

HiiL, Law Scenarios to 2030 (The Hague, HiiL, 2012). The results of this project were published in A Hol et al, ‘Special Issue on Highest Courts and Transnational Interaction’ (2012) 8(2) Utrecht Law Review 1. 64 HiiL, Law Scenarios to 2030 (n 62) 13. 65 Ibid 13 ff. 63

238 Conclusion norms. However, the emphasis on the national law might lead to criticism of such a practice in light of the perceived importance of the national constitutional values. In the Legal Tribes scenario, finally, the main concern of the highest courts would be to guarantee their relevance in relation to private dispute settlement mechanisms. In this scenario, judges have no incentive or platform for the exchange of legal ideas and experiences with foreign colleagues. Of course, it is not certain which of these scenarios will develop. The current debates in the United States about the use of comparative law in judicial decision-making, and in the Netherlands and the United Kingdom about the legitimacy of the ECtHR, make clear that support for the Legal Borders scenario exists in several legal systems. However, it seems unlikely that a total renationalisation of legal rules will occur. Moreover, the further proliferation of transnational private law is a reality which seems hard to reverse and which pushes highest courts to engage in transnational exchanges. Indeed, the increased role of private legal regimes already affects judicial decision-making in the form of the interest of judges to consider ‘soft law’ instruments in judicial deliberations and judgments.66 Furthermore, judges seem to have discovered the possible enrichment of their thinking through the exchanges in judicial networks and the study of available foreign legal materials. The participation in judicial networks and international exchanges is considered important and is highlighted in annual reports and on the websites of the highest courts. Comparative legal research has been integrated in the work of the research staff of the examined highest courts, and has become easier through the increased availability of foreign legal materials through online databases, sometimes providing translations of judgments in several languages.67 In light of these changes, we could say that a new organisational culture has developed already in the highest courts, which cannot easily be reversed. Finally, the judges themselves are already looking further ahead. The question for many of the interviewed judges is not whether foreign law should be used in judicial decision-making, but how it should be used. The research presented in this book has yielded indications that the working methods and approaches to legal interpretation of highest courts are becoming more similar to each other. In the future, a broader convergence might occur, including also highest courts outside the Western world. Then, the highest national courts could work together to improve the quality of the judicial use of foreign law in a ‘global race to the top’, as one of the interviewed judges put it. The highest courts could also aim at a deeper convergence of judicial practices by harmonising the use of comparative

66 67

See Chapter 5, II. See Chapter 4, II and III.

Epilogue: The Future of Judicial Internationalisation 239 law in the reasoning of judgments. Future exchanges would then need to focus on the methodology of comparative legal research for the benefit of judicial decision-making, and on the argumentative possibilities for the use of non-binding foreign legal sources in the legal reasoning of judgments. The analysis presented in this book provides an example of how academic research can guide this development. It is the author’s hope that the described views and experiences of judges in a variety of highest courts will inspire judges and legal scholars around the world to further consider the possibilities and limitations of the judicial engagement with foreign law.

Annex Interview Design Letter Dear [title and name of the judge], I am writing to ask you whether you would be available for an interview in the course of my post-doctoral research on highest courts and globalisation. Your name and contact details were given to me by [name of contact person]. My research concerns the changing role of highest courts in western legal systems under the influence of globalisation. In particular, I look at the extent to which legal ideas and experiences from other jurisdictions play an influencing role on the decisions of the highest national courts. My research is linked to the HiiL project in the Netherlands concerning the study of judicial networks (www.hiil.org). For this research, I am studying a number of jurisdictions, including the ones mentioned above. With regard to [jurisdiction of the judge], the research focuses on [examined court(s)]. I have already begun my analysis of the functioning of this institution/these institutions on the basis of relevant legislation, case law and literature. In order to complete the picture, I would be much helped by getting first-hand information from (former) judges. In particular, I would like to find out how judges see their role within a globalised legal community both in relation to their national public and in relation to national government and Parliament. Also, I would like to get a better understanding of the institutional dynamics which influence the functioning of the highest courts. Specific questions in this respect concern the use of foreign sources (such as international treaty law and foreign case law) in judicial decision-making, and the institutional position of the highest courts in the balance of powers at the domestic level. Given your experience as a judge in [name of the court], I would be very grateful to have a conversation with you regarding the matters described above. Could you please let me know if you would be willing to meet with me? If so, would you have time for a meeting between [available timeframe for the interview]?

Annex 241 For your information, I would like to point out that the interview would not be tape-recorded and all uses of information in future publications would be unattributed. If you would like, I would be happy to submit to you any version of the unattributed information before submission for publication. I look forward to hearing from you. With kind regards, Elaine Mak

Interview questions General: the role and impact of the highest court 1.

What do you think is the role of the highest court on which you are serving in the national legal system? What do you think should be its role? 2. What impact does the court have on the national level? What impact does the court have on the international level? What impact do you think the court should have? 3. Do you perceive that the role or impact of the court has changed over time? If so, in what way has the court’s role or impact changed? What reasons do you think have incited these changes? Institutional arrangements 4.

How do you perceive the institutional framework for the court’s functioning? (that is: relation to other courts, relation to the political powers, NGO’s, citizens, etc.) 5. To what extent do you think the institutional arrangements for the court have an influence on the court’s role in theory and in practice? The use of comparative law 6.

Do you take elements of international and comparative law into account in your decision-making? If so, do you take these elements into account: — as an argument which justifies your decision? — as an additional justification of your decision, not being an authoritative source of itself? 7. Do you think/know that decisions of your Court are used as a source by judges in other legal systems? If so, can you give examples? Do you think this is important? Do you take this into account when deciding cases?

242 Annex 8. If you make use of comparative law sources, how do you obtain information? — Do you receive input from your support staff? — Do you discuss with colleagues or with judges in other courts or in other countries? — Do you take a passive or an active approach, that is: by reading about international law and foreign case law? by actively looking for clues in order to solve pending cases? If so, which types of cases? by participating in international judicial networks and/or international conferences? If so, which ones? The judge as a person 9. Could you give some details regarding your background? This information can include: — training and experience as a judge in the national system; — experience as a judge in a European or an international court; — experience in a specific field of law: private law; criminal law; administrative law; constitutional law; — other professional experiences: government; academia; etc. 10. Do you think your professional background has an influence on your decision-making, in particular as regards the way in which you make use of international and comparative law sources? Could you give examples which illustrate this influence? The role of the court in the future 11. What do you think the future of your court will look like? Will it get a more important or a less important role under the effects of globalisation?

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Books and Articles

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G Canivet, ‘L’amicus curiae en France et aux Etats-Unis’ (2005) 49 Revue de jurisprudence commerciale 99 G Canivet, ‘Trans-Judicial Dialogue in a Global World’ in Sam Muller and Sidney Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010) 21–40 M Cappelletti, ‘The Doctrine of Stare Decisis and the Civil Law: A Fundamental Difference—or No Difference at All?’ in H Bernstein et al (eds), Festschrift Konrad Zweigert (Tübingen, Mohr, 1981) 381–393 A Cassese, International Law, 2nd edn (Oxford, Oxford University Press, 2005) M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) M Claes, ‘Nawoord bij “Kamervoorzitters en hun jurisprudentie”’ (2010) 60 Ars Aequi 655 M Claes and M de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’ (2012) 8(2) Utrecht Law Review 100 E Coke, Coke’s Reports (London, Joseph Butterworth and Son, 1826, original edn 1600–1615) E Coke, Institutes of the Laws of England (London, E and R Brooke, 1797, original edn 1628–1644) JW Creswell, Qualitative Inquiry and Research Design: Choosing among Five Approaches, 3rd edn (Thousand Oaks, Sage, 2012) P Darbyshire, Sitting in Judgment: The Working Lives of Judges (Oxford, Hart Publishing, 2011) AM Donner, ‘Inleiding’ (1980) 42 Rechtsgeleerd Magazijn Themis 354 N Dorsen et al, Comparative Constitutionalism: Cases and Materials, 2nd edn (New York, West Publishing Co, 2010) R Dworkin, Law’s Empire (Oxford, Hart Publishing, 1998, original edn 1986) C Eckes, ‘The Case of Counter-Terrorist Sanctions’ in KE Jørgensen and KV Laatikainen (eds), Routledge Handbook on the European Union and International Institutions (Abingdon, Routledge, 2013) 171–184 CL Eisengruber, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton, NJ, Princeton University Press, 2007) Z Elkins, T Ginsburg and J Melton, The Endurance of National Constitutions (Cambridge, Cambridge University Press, 2009) R Encinas de Munagorri, ‘L’ouverture de la Cour de cassation aux amici curiae’ (2005) Revue trimestrielle de droit civil 91 R Errera, ‘The Use of Comparative Law Before the French Administrative Law Courts’ in G Canivet, M Andenas and D Fairgrieve (eds), Comparative Law before the Courts (London, BIICL, 2004) 153–163 G van Ert, ‘Using Treaties in Canadian Courts’ (2000) 38 Canadian Yearbook of International Law 3 G van Ert, Using International Law in Canadian Courts (The Hague, Kluwer Law International, 2002) M Fabri and PM Langbroek, ‘Is There a Right Judge for Each Case? A Comparative Study of Case Assignment in Six European Countries’ (2007) 1 European Journal of Legal Studies 2 DA Farber, The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History UC Berkeley Public Law Research Paper No 954359 (2006)

246 Bibliography L Favoreu et al, Droit constitutionnel (Paris, Dalloz, 2001) D Feldman, ‘Human Rights’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009) 541–573 F Ferrand, ‘The French Approach to the Globalisation and Harmonisation of Civil Procedure’ in XE Kramer and CH van Rhee (eds), Civil Litigation in a Globalising World (The Hague, TMC Asser Press, 2012) 335–362 V Ferreres-Comella, ‘A Defense of Constitutional Rigidity’, in P Comanducci and R Guastini (eds), Analisi e diritto 2000. Ricerche di giurisprudenza analitica (Turin, G Giappichelli Publisher, 2000) 45–68 B Flanagan and S Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60 International and Comparative Law Quarterly 1 V Fon and F Parisi, ‘Judicial Precedents in Civil Law Systems: A Dynamic Analysis’ (2006) 26 International Review of Law and Economics 519 DJ Galligan, ‘The Paradox of Constitutionalism or the Potential of Constitutional Theory?’ (2008) 28 Oxford Journal of Legal Studies 343 M Gelter and M Siems, ‘Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts’ (2012) 8 Utrecht Law Review 88 M Gelter and MM Siems, ‘Language, Legal Origins, and Culture before the Courts: Cross-Citations between Supreme Courts in Europe’ (2013) 21 Supreme Court Economic Review (forthcoming) B Genevois, ‘L’influence du Conseil constitutionnel’ (1989) no 49 Pouvoirs 47 G Gentili, ‘Canada: Protecting Rights in a “Worldwide Rights Culture”: An Empirical Study of the Use of Foreign Precedents by the Supreme Court of Canada (1982–2010)’ in T Groppi and MC Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart Publishing, 2013) 39–67 J Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80 I Giesen, ‘The Use and Influence of Comparative Law in “Wrongful Life” Cases’ (2012) 8 Utrecht Law Review 35 P Giliker, ‘Revisiting Pure Economic Loss: Lessons to be Learnt from the Supreme Court of Canada?’ (2005) 25 Legal Studies 49 T Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge, Cambridge University Press, 2003) HP Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 3rd edn (Oxford, Oxford University Press, 2007) T Groppi, ‘A User-Friendly Court: The Influence of Supreme Court of Canada Decisions Since 1982 on Court Decisions in Other Liberal Democracies’ (2007) 36 Supreme Court Law Review 337 T Groppi and MC Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart Publishing, 2013) B Hale, ‘A Supreme Judicial Leader’, in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: A Liber Amicorum (Oxford, Oxford University Press, 2009) 209–220 A Hamilton, J Madison and J Jay, The Federalist; or The New Constitution (New York, J and A McLean, 1788)

Books and Articles

247

F Hamon and C Wiener, La justice constitutionnelle en France et à l’étranger (Paris, LGDJ, 2011) HLA Hart, The Concept of the Law, 2nd edn (Oxford, Oxford University Press, 1997) OA Hathaway, ‘Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System’ (2001) 86 Iowa Law Review 101 WJ Henisz, ‘Political Institutions and Policy Volatility’ (2004) 16 Economics and Politics 1 T Hickman, Public Law after the Human Rights Act (Oxford, Hart Publishing, 2010) R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004) R Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’ (2005) 53 American Journal of Comparative Law 125 N Hoffman, ‘Political Institutions and Policy Outcomes: The Political Constraints Approach of Henisz’ (2010) 8 CESifo DICE Report 53 A Hol et al, ‘Special Issue on Highest Courts and Transnational Interaction’ (2012) 8(2) Utrecht Law Review 1 WS Holdsworth, ‘Sir William Blackstone’ (1928) 7 Oregon Law Review 155 NJH Huls, ‘Rechterlijk leiderschap, ontwikkelingen sinds 1988’ in NJH Huls (ed), Versterking van de cassatierechtspraak door de Hoge Raad (The Hague, Boom Juridische uitgevers, 2009) N Huls, M Adams and J Bomhoff (eds), The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (The Hague, TMC Asser Press, 2009) A Iriye, P Goedde and WI Hitchcock (eds), The Human Rights Revolution: An International History (New York, Oxford University Press, 2012) Lord Irvine, ‘A British Interpretation of Convention Rights’ (2012) Public Law 237 VC Jackson, Constitutional Engagement in a Transnational Era (Oxford, Oxford University Press, 2009) VC Jackson and MV Tushnet, Comparative Constitutional Law, 2nd edn (New York, Foundation Press, 2006) M Jacobson, Understanding Legal Evolution: The Construction of the Constitutional Order in Europe, Hebrew University of Jerusalem Working Papers (2005) U Jaremba, National Judges as EU Law Judges: The Polish Civil Law System (Leiden, Brill, forthcoming) WI Jennings, The Law and the Constitution, 2nd edn (London, University of London Press, 1938) A Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009) H Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183 T Koopmans, Courts and Political Institutions: A Comparative View (Cambridge, Cambridge University Press, 2003) CAJM Kortmann, Constitutioneel recht (Deventer, Kluwer, 2005) GV La Forest, ‘The Use of International and Foreign Material in the Supreme Court of Canada’ (1988) 17 Canadian Council on International Law. Proceedings 230 GV La Forest, ‘The Expanding Role of the Supreme Court of Canada in International Law Issues’ (1996) 34 Canadian Yearbook of International Law 89

248 Bibliography FF Langemeijer, JE van de Bunt and S Sierksma, ‘Het raadplegen van externe deskundigen in burgerlijke zaken door de Hoge Raad of het parket’ (2009) Trema 130 M de S-O-l’E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004) M de S-O-l’E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford, Oxford University Press, 2009) E Lazega, ‘Mapping Judicial Dialogue across National Borders: An Exploratory Network Study of Learning from Lobbying among European Intellectual Property Judges’ (2012) 8(2) Utrecht Law Review 115 L LeBel and G Chao, ‘The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law’ (2002) 16 Supreme Court Law Review (2d) 23 AP Le Sueur, ‘The Judges and the Intention of Parliament: Is Judicial Review Undemocratic?’ (1991) 44 Parliamentary Affairs 283 A Lever, ‘Is Judicial Review Undemocratic?’ (2007) Public Law (Summer) 280 C L’Heureux-Dubé, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court’ (1998) 34 Tulsa Law Journal 15 CMT Lindo, ‘Salah Sheekh en de Afdeling bestuursrechtspraak: Interview met mr P van Dijk, Voorzitter van de Afdeling’ (2007) 82 Nederlands Juristenblad 392 K Loewenstein, Über Wesen, Technik und Grenzen der Verfassungsänderung (De Gruyter, Berlin 1961) A Lollini, ‘Legal Argumentation Based on Foreign Law: An Example from Case Law of the South African Constitutional Court’ (2007) 3 Utrecht Law Review 1 MA Loth, ‘Beslissen te beslissen, hoe de Hoge Raad zijn agenda bepaalt’ in AG Castermans et al (eds), Het zwijgen van de Hoge Raad (Deventer, Kluwer, 2009) 3–16 DN MacCormick and RS Summers (eds), Interpreting Precedents: A Comparative Study (Dartmouth, Dartmouth Publishing Co Ltd, 1997) E Mak, De rechtspraak in balans (Nijmegen, Wolf Legal Publishers, 2007) E Mak, ‘Justice at a New Scale: Introducing a Conceptual Framework for the Analysis of Highest Courts’ Role in a Globalised Context’, in S Muller and S Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010) 115–127 E Mak, ‘Report on the Netherlands and Luxembourg’ in Giuseppe Martinico and Oreste Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective (Groningen, Europa Law Publishing, 2010) 301–325 E Mak, ‘Why Do Dutch and UK Judges Cite Foreign Law?’ (2011) 70 Cambridge Law Journal 420 E Mak, ‘De Grondwet en de globalisering van de rechtspraak’ in A Kristic, A Meuwese and G van der Schyff, Functie en betekenis van de Grondwet: Een dialogisch perspectief (Nijmegen, Wolf Legal Publishers, 2011) 73–91 E Mak, ‘Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands: Explaining the Development of Judicial Practices’ (2012) 8 Utrecht Law Review 20 E Mak, ‘Understanding Legal Evolution through Constitutional Theory: The Concept of Constitutional (In-)Flexibility’ (2012) 4 Erasmus Law Review 193

Books and Articles

249

E Mak, ‘Rechterlijke rechtsvergelijking: over het gebruik van rechtsvergelijkende argumenten in de beslissingen van hoogste rechters’ in ET Feteris et al (eds), Gewogen oordelen: Essays over argumentatie en recht (The Hague, Boom Juridische uitgevers, 2012) 413–422 B Markesinis and J Fedtke, Judicial Recourse to Foreign Law (Abingdon, RoutledgeCavendish, 2006) RI Martin, The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy (Montreal, McGill-Queen’s University Press, 2005) 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) U Mattei, Stare Decisis: Il Valore del Precedente Giudiziario negli Stati Uniti d’America (Milan, Giuffrè, 1988) JA Maxwell, Qualitative Research Design: An Interactive Approach, 3rd edn (Thousand Oaks, Sage, 2012) P McCormick, ‘Assessing Leadership on the Supreme Court of Canada: Towards a Typology of Chief Justice Performance’ (1993) 4 Supreme Court Law Review 409 J Meierhenrich, ‘Judicial Networks’ in AJ Langlois and KE Soltan (eds), Global Democracy and its Difficulties (London, Routledge, 2009) 168–190 F Melleray (ed), L’argument de droit comparé en droit administratif français (Brussels, Bruylant, 2007) JW Meyer et al, ‘World Society and the Nation State’ (1997) 103 American Journal of Sociology 1 C Mialot, ‘L’utilisation du droit comparé par le Conseil d’Etat, un changement dans la fabrique du droit’ (2010) AJDA: L’actualité juridique du droit administratif 1462 TJ Miles and CR Sunstein, ‘The New Legal Realism’ (2008) 75 The University of Chicago Law Review 831 P Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto, Carswell Legal Publications, 1987) S Muller and S Richards (eds), Highest Courts and Globalisation (The Hague, Hague Academic Press, 2010) CC Murphy, ‘Report on Ireland and the UK’ in 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) GY Ng, Quality of Judicial Organisation and Checks and Balances (Antwerp, Intersentia, 2007) CL Ostberg and ME Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancouver, UBC Press, 2007) VV Palmer and M Bussani, Pure Economic Loss: New Horizons in Comparative Law (Abingdon, Routledge-Cavendish, 2009) D Piana, Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice (Farnham, Ashgate, 2010) J Plötner, ‘Report on France’ in AM Slaughter, A Stone Sweet and JHH Weiler (eds), The European Court and National Courts: Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford, Hart Publishing, 1998) 41–75 RA Posner, How Judges Think (Cambridge, MA, Harvard University Press, 2008)

250 Bibliography L Prakke and C Kortmann (eds), Constitutional Law of 15 EU Member States (Deventer, Kluwer, 2004) T Rainsbury, ‘Their Lordships’ Timorous Souls’ (2008) 1 UCL Human Rights Review 32 W van Reenen, ‘The Submission of Amicus Curiae Briefs to United States Courts’ in N Blokker et al, Essays in Honour of Johan G Lammers (Leiden, Nijhoff, 2006) 199–222 M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford University Press, 2008) D Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, NJ, Princeton University Press, 2010) M Rosenfeld, Principle or Ideology? A Comparativist Perspective on the US Controversy over Supreme Court Citations to Foreign Authorities, Cardozo Legal Studies Research Paper No 213 (2008) A Roßnagel, Die Änderungen des Grundgesetzes. Eine Untersuchung der politischen Funktion von Verfassungsänderungen (Frankfurt am Main, 1981) EV Rostow, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law Review 193 H Roussillon and P Esplugas, Le Conseil constitutionnel, 7th edn (Paris, Dalloz, 2011) B Roy, ‘An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation’ (2004) 62 University of Toronto Faculty Law Review 99 JM Sauvé, ‘Préface’ in R Badinter et al, Le dialogue des juges: Mélanges à l’honneur du président Bruno Genevois (Paris, Dalloz, 2009) xxxix–xlv A Scalia, A Matter of Interpretation: Federal Courts and the Law (A Gutmann (ed), Princeton, NJ, Princeton University Press, 1997) F Schauer, ‘The Exceptional First Amendment’, in M Ignatieff (ed), American Exceptionalism and Human Rights (Princeton, NJ, Princeton University Press, 2005) 29–56 F Schauer, ‘Authority and Authorities’ (2008) 94 Virginia Law Review 1931 F Schauer, ‘Precedent’ in A Marmor (ed), The Routledge Companion to Philosophy of Law (London, Routledge, 2012) 123–136 C Schmitt and H Obinger, ‘Constitutional Barriers and the Privatization of Public Utilities in Rich Democracies’ (2011) 7 World Political Science Review 1 (article 7) D Schnapper, Une sociologue au Conseil constitutionnel (Paris, Gallimard, 2010) I Seidman, Interviewing as Qualitative Research: A Guide for Researchers in Education and the Social Sciences, 3rd edn (New York, Teachers’ College Press, 2006) RJ Sharpe and K Roach, Brian Dickson: A Judge’s Journey (Toronto, University of Toronto Press, 2003) RB Siegel, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA’ (2006) 94 California Law Review 1323 G Sitaraman, ‘The Use and Abuse of Foreign Law in Constitutional Interpretation’ (2009) 32 Harvard Journal of Law and Public Policy 653 AM Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99 AM Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191 AM Slaughter, A New World Order (Princeton, NJ, Princeton University Press, 2004)

Books and Articles

251

AM Slaughter, A Stone Sweet and JHH Weiler (eds), The European Court and National Courts: Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford, Hart Publishing, 1998) DR Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (Toronto, University of Toronto Press, 2008) TP Spijkerboer, ‘Straatsburg en het Nederlandse vluchtelingenrecht’ (2007) 82 Nederlands Juristenblad 380 P Stein, Legal Evolution: The Story of an Idea (Cambridge, Cambridge University Press, 2009) R Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (London, Weidenfeld and Nicolson, 1979) R Stevens, The English Judges: Their Role in the Changing Constitution (Oxford, Hart Publishing, 2002) B Stirn, D Fairgrieve and M Guyomar (eds), Droits et libertés en France et au Royaume-Uni (Paris, Odile Jacob, 2006) A Stone, ‘Comparativism in Constitutional Interpretation’ (2009) New Zealand Law Review 45 A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) WME Thomassen, ‘Het geheim van de raadkamer en de dissenting opinion’ (2006) 81 Nederlands Juristenblad 686 J Toobin, The Nine: Inside the Secret World of the Supreme Court (New York, Doubleday, 2007) A Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication (Oxford, Oxford University Press, 2009) A Touffait and A Tunc, ‘Pour une motivation plus explicite des decisions de justice notamment de celles de la Cour de cassation’ (1974) 72 Revue trimestrielle de droit civil 491 LB Tremblay, ‘The Legitimacy of Judicial Review: The Limits of Dialogue between Courts and Legislatures’ (2005) 3 International Journal of Constitutional Law 617 LH Tribe, The Invisible Constitution (Oxford, Oxford University Press, 2008) G Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ, Princeton University Press, 2002) M Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ, Princeton University Press, 2000) M Tushnet, Why the Constitution Matters (New Haven, Yale University Press, 2010) I Tyrrell, ‘American Exceptionalism and Uneven Global Integration: Resistance to the Global Society’ in B Mazlish, N Chanda and K Weisbrode (eds), The Paradox of a Global USA (Stanford, CA, Stanford University Press, 2007) 64–80 A Vauchez, ‘The Transnational Politics of Judicialization: Van Gend en Loos and the Making of EU Polity’ (2010) 16 European Law Journal 1 CM Vázquez, ‘Judicial Enforcement of Treaties: Self-Execution and Related Doctrines’ (2006) 100 American Society of International Law Proceedings 439 S Voigt, Explaining Constitutional Change: A Positive Economics Approach (Cheltenham, Edward Elgar Publishing, 1999) JD van der Vyver, Implementation of International Law in the United States (Frankfurt am Main, Peter Lang, 2010)

252 Bibliography J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346 A Ward and DL Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York, New York University Press, 2006) MA Waters, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 628 E De Wet, ‘The Reception Process in the Netherlands and Belgium’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008) 229–310 B Woodward and S Armstrong, The Brethren: Inside the Supreme Court (New York, Simon & Schuster, 2005, first published 1979) AL Young, Parliamentary Sovereignty and the Human Rights Act (Oxford, Hart Publishing, 2009) KM ZoBell, ‘Division of Opinion in the Supreme Court: A History of Judicial Disintegration’ (1959) 44 Cornell Law Quarterly 186

PUBLIC LECTURES M Ameller, ‘Retour sur le Conseil’ (2008) no 25 Cahiers du Conseil constitutionnel R Bader Ginsburg, ‘Judicial Stimulation of Legislative Change: A View from the United States’ (Third Leslie Scarman Lecture, London, 11 February 2010) R Badinter, ‘Une longue marche “Du Conseil à la Cour constitutionnelle”’ (2008) no 25 Cahiers du Conseil constitutionnel A Barak, ‘Comparative Law, Originalism and the Role of a Judge in a Democracy: A Reply to Justice Scalia’ (Law Symposium: International Influences on National Legal Systems, Haifa, 29 January 2006) I Binnie, ‘Foreign Sources: Searching for Enlightenment or a Fig Leaf?’ (London (UK), July 2010) I Binnie, ‘Judging the Judges: May They Boldly Go Where Justice Rand Went Before’ (Coxford Lecture, London (Ontario), 16 February 2012) S Breyer, ‘The Supreme Court and the New International Law’ (American Society of International Law, Washington, DC, 4 April 2003) S Breyer, ‘The Court and Foreign Law’ (Rostov Lecture on International Affairs, Johns Hopkins University Paul H Nitze School of Advanced International Studies, 31 March 2010) S Day O’Connor, ‘Keynote Address’ (American Society of International Law, Washington, DC, 16 March 2002) (2002) American Society of International Law Proceedings 348 L Denniston, ‘Is the “Rule of Four” Fully Intact?’ (Yale Law School panel discussion ‘Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process, Washington, DC, 18 September 2009) N Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519 R Dumas, ‘Un Conseil ouvert sur le monde’ (2008) no 25 Cahiers du Conseil constitutionnel

Reports

253

O Dutheillet de Lamothe, ‘Constitutional Court Judges’ Roundtable’ (2005) 3 International Journal of Constitutional Law 550 J Dyson, ‘What is Wrong with Human Rights?’ (Hertfordshire University, 3 November 2011) P Elias, ‘The Rise of the Strasbourgeoisie: Judicial Activism and the ECHR’ (Annual Lord Renton Lecture, Institute for Advanced Legal Studies, London, 24 November 2009) B Hale, ‘Judgment Writing in the Supreme Court’ (Supreme Court First Anniversary Seminar, London, 30 October 2010) A Lancelot, ‘Où il est question du bonheur au sommet de l’Etat’ (2008) no 25 Cahiers du Conseil constitutionnel L LeBel and A Gonsalves, ‘Comments on the Integration of International Law into the Canadian Legal System’ (International Law and Litigation for US Judges, Federal Judicial Center, 30 October 2006) J Lee, ‘The Doctrine of Precedent and the Supreme Court’ (Inner Temple Academic Fellow’s Lecture, London, 23 April 2012) N Lenoir, ‘1992–2001: Souvenirs d’une femme au Conseil constitutionnel’ (2008) no 25 Cahiers du Conseil constitutionnel PJ Messitte, ‘Speech: Citing Foreign Law in US Courts: Is Our Sovereignty Really at Stake?’ (2005) 35 University of Baltimore Law Review 171 M Pelletier, ‘Quatre années trop courtes’ (2008) no 25 Cahiers du Conseil constitutionnel JE Schoettl, ‘Ma cinquantaine rue de Montpensier’ (2008) no 25 Cahiers du Conseil constitutionnel R Silberman Abella, ‘International Law and Human Rights: The Power and the Pity’ (2010) 55 McGill Law Journal 871 P Steinmetz, ‘Contribution à la conférence mondiale sur la justice constitutionnelle’ (Capetown, 23–24 January 2009) S Sotomayor, ‘How Federal Judges Look to International and Foreign Law under Article VI of the US Constitution’ (American Civil Liberties Union of Puerto Rico, San Juan, 28 April 2009) Lord Woolf, ‘Opening of the Judicial Year European Court of Human Rights: Strasbourg’ (Strasbourg, 23 January 2003)

REPORTS Conseil constitutionnel et QPC: une révolution? (La Documentation française, Paris 2011) ‘The Supreme Court 2009 Term: The Statistics’ (2010) 124 Harvard Law Review 411 ‘The Supreme Court 2010 Term: The Statistics’ (2011) 125 Harvard Law Review 362 Chief Justice Roberts (US Supreme Court), 2011 Year-End Report on the Federal Judiciary Conseil d’Etat (France), Le Conseil d’Etat et la justice administrative en faits et chiffres 2009 Conseil d’Etat (France), Le Conseil d’Etat et la justice administrative en 2010: faits et chiffres

254 Bibliography Court of Justice of the European Union, Annual Report 2010 Hague Institute for the Internationalisation of Law (HiiL), Law Scenarios to 2030 (The Hague, HiiL, 2012) Hammerstein Committee, Improving Cassation Procedure (The Hague, February 2008) Hoge Raad (Netherlands), Verslag 2007 en 2008 Hoge Raad (Netherlands), Verslag over 2009–2010 Institut de Droit Comparé Edouard Lambert, ‘L’étendue de l’autorité de la chose jugée en droit comparé’ Justice, To Assist the Court: Third Party Interventions in the UK (London, 26 October 2009) Law Commission, Remedies against Public Bodies. A Scoping Report (2006) Ministry of Justice (UK), Judicial and Court Statistics 2009 Raad van State (Netherlands), Jaarverslag 2010 Staatscommissie Grondwet, Rapport Staatscommissie Grondwet (The Hague, 11 November 2010) Supreme Court of Canada, Statistics 2000 to 2010 Supreme Court of the UK, The Supreme Court Annual Report and Accounts 2009–2010 Supreme Court of the UK, The Supreme Court Annual Report and Accounts 2010–2011 Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellor’s Department, London 1995)

OTHER SOURCES ‘Bans on Courts’ Use of Sharia/International Law: Pennsylvania Bill Introduced’, Gavel to Gavel, 28 November 2011 ‘Brighton Declaration on ECHR Reform Adopted’ (Brighton, 20 April 2012) ‘Donner benoemd tot vicepresident Raad van State’ (The Hague, 16 December 2011) ‘Judge John Roberts Confirmation Hearings’ (askSam eBooks and Databases) ‘Judicial Process and the Protection of Rights: The US Supreme Court and the European Court of Human Rights’, GW Law, 1 March 2012 ‘Meer aandacht Hoge Raad voor kerntaken’ (The Hague, 16 March 2012) ‘UK Supreme Court judges sworn in’, BBC News (London), 1 October 2009 C Coleman, ‘Jonathan Sumption QC appointed Supreme Court judge’, BBC News, 4 May 2011 A Fellmeth, ‘International Law and Foreign Laws in the US State Legislatures’, ASIL Insights, 26 May 2011 F Gibb, ‘Supreme Court opens as fears raised of US-style selection of judges’, The Times (London), 1 October 2009 Hague Institute for the Internationalisation of Law (HiiL), ‘Managing Workloads at Highest Courts through Case-Selection’ C Hanretty, ‘Dissenting Opinions in the UKSC’, UK Supreme Court Blog, 19 August 2010

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JJ Holland, ‘Justice Breyer Says Debate over Foreign Law is Irrelevant’, United States Supreme Court Monitor, 2 April 2010 S Kingma, ‘Raadsheer Snijders verbindingsofficier met de Raad van State’ (Cassatieblog, 15 November 2011) M Kwiecinski, ‘Supreme Court Justices Convene with European Counterparts’, The GW Hatchet, 1 March 2012 K Makin, ‘Justice Ian Binnie’s exit interview’ Globe and Mail (Toronto), 23 September 2011 C McCrudden, ‘Comparing the European Court of Human Rights and the United States Supreme Court’, Constitutional Law Group, 12 March 2012 S Monart, ‘Sint Maarten baanbrekend met Constitutioneel Hof’ (Aworaki, 17 November 2010) R Smith, ‘Why Third-Party Interventions in the Judicial Process Benefit Democracy’, Law Society Gazette, 12 November 2009 Syndicat de la Magistrature, ‘Observations du Syndicat de la Magistrature sur la réforme du Conseil Supérieur de la Magistrature’ (Paris, 23 September 2009) UK Supreme Court, ‘Press Notice: Lord Phillips, President of the Supreme Court, to retire next summer’ (London, 11 October 2011) UK Supreme Court, ‘News Release: New President of the Supreme Court’ (London, 12 July 2012) UK Supreme Court, ‘Scottish Criminal Cases and the UK Supreme Court’ Union Syndicale des Magistrats, ‘Observations de l’USM sur le projet de loi organique relatif à l’application de l’article 65 de la Constitution’ (Paris, 30 November 2009)

Index Administrative courts Centrale Raad van Beroep, 48 College van Beroep voor het bedrijfsleven, 48 competence of review, 47–49 Conseil d’Etat, 48, 52, 57–58 see also Conseil d’Etat fair trial provisions, 49 international treaty provisions, 48 Raad van State, 48–49, 53–54, 57 see also Raad van State Amici curiae function, 120, 122–24, 136 Anglo-Saxon model (highest courts) case selection, 42–43, 78 caseload Supreme Court of Canada, 43–44 UK Supreme Court, 42–43 US Supreme Court, 44–45 Commonwealth jurisdictions, 36 competence of review Supreme Court of Canada, 37–38, 60 UK Supreme Court, 37, 59–60 US Supreme Court, 38–39, 60 composition (judges and staff) Supreme Court of Canada, 40–41 UK Supreme Court, 39–40 US Supreme Court, 41–42 legal development, 78 origins, 36 shared heritage, 36–37 Bibliography, 243–55 Canada see also Supreme Court of Canada Canadian Charter of Rights and Freedoms, 24, 38, 73, 143, 162, 182–83, 204, 208 fundamental rights, 77 justification of judicial decisions, 228 Québec courts, 72 Québec influence (comparative law), 185, 207 Citation of foreign law see also Foreign law binding sources, 200

cases of public importance, 201 CJEU decisions, 199–200 comparative research, 14 conditional intent, 202 constitutional rights, 203 constitutional rules, 15 Dutch courts, 199–201 ECHR provisions, 199 ECtHR decisions, 199–200 EU law, 200 foreign judgments, 198–99, 231 French courts, 199–201 harmonisation, 200–1 Hoge Raad, 200, 202 increased knowledge, 201 international law sources, 200 judicial decision-making, 199–200 judicial motive, 200–1, 203 judicial opportunism, 202 judicial practices, 2–4, 14–15 judicial reasoning, 201 non-binding sources, 199–201 persuasive precedents, 201 quality standards, 201 solutions from other systems, 202 Supreme Court of Canada, 151–54, 199, 201 UK Supreme Court, 151 US Supreme Court, 155 Comparative law fundamental freedoms, 161 influence of comparative law CJEU decisions, 161, 191, 196 Constitutional Court of Belgium, 161 ECHR, 161–62 EU law, 161 style of judgments, 160 judicial decision-making, 150 judicial deliberations, 2 judicial reasoning, 2, 178 non-binding sources, 150, 160, 178 selection of comparative materials see Selection of comparative materials use of comparative law access to materials, 214, 233 Advocate-General’s opinions, 160 benefit analysis, 232–33

258 Index Conseil constitutionnel, 159, 190, 212 Conseil d’Etat, 158–59, 193, 212 convergence, 227, 229 Cour de cassation, 159, 191–92, 212 effective decision-making, 232–33 European sources, 206 foreign case law, 178 foreign legislation, 178 globalist view, 227, 229–30 highest national courts, 178 Hoge Raad, 160, 194–97 international opinion, 178 interpreting domestic law, 178 judicial assistance, 233 judicial engagement, 227, 229 language constraints, 206–7, 210–11, 214, 226 legal tradition, 11, 32–33, 206–7, 209–10, 214, 226 localist view, 227, 229 methodology, 239 non-binding foreign sources, 206 prestige of court, 206, 210, 214, 218, 226, 232 Raad van State, 160–61, 194–95 research work, 232–33, 239 resistance, 227, 229 Supreme Court of Canada, 151–54, 181–87, 206–9 UK Supreme Court, 150–51, 178–87, 206 US sources, 206 US Supreme Court, 154–58, 187–90, 209–11 Conseil constitutionnel caseload, 51, 58–59 comparative law influence, 159 use, 190, 212 competence, 46, 49–50, 60 establishment, 46, 50 internal coordination, 74–75 international law influences, 147, 172 judges and staff, 54–55, 61 judicial assistants, 55 judicial deliberations, 127 judicial networks and exchanges, 93–94 judicial review, 46, 49–51 preliminary rulings, 59 published judgments, 133 review of constitutionality, 46, 49–50, 58 Secretary-General, 55 Conseil d’Etat comparative law influence, 158–59 use, 193, 212 competence, 48 composition, 52

internal coordination, 74–75 international law use, 172 judicial deliberations, 127 judicial networks and exchanges harmonisation, 92 international exchanges, 92–93 jurisdiction, 48 researching international and comparative law Cellule de droit comparé, 117 Commissaire du gouvernement, 117 ECtHR decisions, 117 institutional reforms, 117 judicial assistants, 117 on-line databases, 117 Constitutional (in-)flexibility constitutional norms, 11, 20–21, 25 see also Constitutional norms constitutional rules, 15 fundamental rules, 18 globalisation, 218 judicial function, 20 judicial practices, 15 national constitutions, 5, 11 normative change, 15, 17–18, 20, 24–25, 27–28, 218, 223, 226 legal evolution, 15–18 see also Legal evolution permanence, 19 procedural aspects constitutional interpretation, 11, 15, 20, 24–26, 223–27 detail of constitutional norms, 11, 20 international law influence, 11, 20, 26–28 modalities of constitutional revision, 11, 20–23 process of change, 19–20 substantive aspects efficiency of decision-making, 11, 34–35 justification of judicial decisions, 11, 28–32, 227–29 legal tradition, 11, 32–33, 206–7, 209–10, 214, 216 nature of the case, 11, 34, 207–8, 230, 232 Constitutional interpretation balance of powers, 25, 223–24 comparative law usage, 223 constitutional conventions, 25–26 distribution of competences, 25–26 ECHR provisions, 225 EU law impact, 225 executive power, 24 France, 225 fundamental rights, 25 hard cases, 26 harmonisation, 223, 225

Index human rights protection, 224–25 international law status, 226 treaty provisions, 224–25 usage, 223 judicial activism, 25 judicial constraints, 224 judicial deference, 25 judicial discretion, 26, 226 judicial function, 223–24, 226–27 judicial influence, 223 judicial interpretation, 20, 24 judicial law-making, 25–26 judicial review, 26, 224, 226 legal argumentation, 24 legislator’s perspective, 24 multiple actors, 25 national examples, 24–25 Netherlands, 224–25 normative change, 15, 17–18, 24–25, 27–28, 218, 223, 226 parliamentary sovereignty, 26 procedural element of change, 11, 15, 20, 24–26 Supreme Court of Canada, 224–25 transnational judicial dialogue, 226 United Kingdom, 224–25 US Supreme Court, 224–25 Constitutional norms balance of powers, 21, 25 Canada, 220 comparative law usage, 223 constitutional amendments, 223 constitutional theory, 218 constitutional values, 221–22 degree of detail, 11, 20 ECtHR decisions, 222 flexibility, 20–21 France, 220 fundamental rights, 221–22 fundamental values, 221 globalisation, 218, 222 human dignity, 221 human rights, 222 international law implementation, 218 status, 21 interpretation, 20 judicial constraints, 137 judicial internationalisation, 219, 223 national identity, 221 Netherlands, 220–22 non-binding foreign law, 218–20, 223 normative change, 5–6, 15, 17–18, 20, 22, 24–25, 27–28, 218–19, 222 normative framework, 17 recourse to comparative law, 219 resistance to foreign law, 219–20

259

role of the courts, 218 rule of law, 221 South Africa, 219 United Kingdom, 220, 222 US legal system, 219–21 Constitutional revision constitutional examples, 23 flexibility, 21–22 fundamental legal rules, 23 normative change, 22 political procedures, 22 requirements for revision, 21–22 Constitutional-theoretical understanding balance of powers, 21, 25 codification, 19 constitutional conventions, 19–20, 23, 25–26 constitutional (in-)flexibility, 5 see also Constitutional (in-)flexibility constitutional interpretation, 20, 24–26 see also Constitutional interpretation constitutional norms, 5, 18 see also Constitutional norms constitutional theory constitutional law, 17 fundamental norms, 17 legal evolution, 15 nature of constitutions, 16 normative framework, 17 rule of law, 17 judicial practices, 5, 10–11 normative change, 5–6, 15, 17–18, 20, 22, 24–25, 27–28, 218, 223, 226 normative status, 18 notion of constitution, 18–19 Constitutional theory constitutional law, 17 fundamental norms, 17 legal evolution, 15 see also Legal evolution nature of constitutions, 16 normative framework, 17 rule of law, 17 Convergence access to sources, 5 foreign law usage, 139 globalisation, 105–6, 113 harmonisation process, 5, 15 increased judicial dialogue, 5–6 interconnection of legal systems, 5 internal coordination, 75–76 judicial internationalisation, 13, 234, 238 see also Judicial internationalisation judicial practices, 1, 4–5, 14, 137, 217, 234, 238 justification of judicial decisions, 227, 229 transnational convergence, 5, 30, 227, 229 vertical dialogue, 82

260 Index Counsel’s role Cour de cassation, 123 Hoge Raad, 123–24 Supreme Court of Canada, 121–22 UK Supreme Court, 120–21 US Supreme Court, 122 Cour de cassation amicus curiae briefs, 123 comparative law influence, 159 use, 191–92, 212 competence, 46–47, 60 counsel’s role, 123 foreign law references, 123 Haute Cour, 47 internal coordination, 74 international law influences, 147, 172 international treaty law, 46 judges and staff, 52 judicial deliberations, 127 judicial networks and exchanges bilateral exchanges, 90–91 organisational issues, 91 transnational networks, 91–92 published judgments apodictic judgments, 133–34 foreign law, 133 length of judgments, 133 press releases, 134–35 style of reasoning, 133–34 unanimous decisions, 132, 136 rapport objectif, 123 researching international and comparative law Advocate-General, 116–17, 119 ECtHR decisions, 117 fair trial provisions, 117 institutional reforms, 117 on-line databases, 117 uniform application of the law, 73 Court of Justice of the European Union case law interpretation, 70–71 citation of decisions, 199–200 competence, 70 fundamental rights, 9 influence, 142, 148–50, 161, 173–77, 191, 196 judicial authority, 78 preliminary rulings, 70, 74 vertical dialogue, 81 EU law application, 70 citations of provisions, 200 influence, 141–43, 146, 148–50, 161–63, 173–75, 177, 225 integration, 5, 234 source of law, 29, 139–40

supranational order, 27, 29 supremacy, 146 vertical dialogue, 81–82 European Convention on Human Rights citation of provisions, 199 criticism, 5 declarations of incompatibility, 23, 37, 60, 165 influence, 27–28, 141–43, 146, 148–49, 161–66, 173–74, 179, 188, 225 interpretation, 70 legislative compatibility, 23, 76 margin of appreciation, 5, 86 right to fair trial, 28, 34, 117 right to private and family life, 28 vertical dialogue, 81–82 European Court of Human Rights citation of cases, 199–200 competence, 70, 78 fundamental rights, 9 influence, 142–43, 149, 152, 162, 173–74, 181–84, 187, 235 judicial authority, 78 legitimacy, 78 margin of appreciation, 5, 86 vertical dialogue, 80–81 Foreign law see also Citation of foreign law; Comparative law binding sources, 12, 29, 139–40, 161, 214 influences CJEU, 142, 148–50, 161 ECHR, 27–28, 141–43, 146, 148–49, 161–62 ECtHR, 142–43, 149, 152, 162 EU law, 141–43, 146, 148–50, 161–62 interlocutors, 30 judicial argumentation citation of foreign judgments, 198–99 citation of foreign materials, 199–203 methodological challenges, 203–205, 215–16 style of reasoning, 198, 231 judicial decision-making, 1–4, 29–30, 35, 68–69, 103, 105, 139–41, 161, 198, 203, 205, 213 judicial review, 32 meaning, 139 methodological challenges, 203–5, 215–16 see also Methodological challenges recourse to foreign law, 10 resistance, 30 selection of comparative materials see Selection of comparative materials soft law, 12 sources

Index case law, 140, 163 customary international law, 139 EU law, 29, 139–43, 146, 148–50, 161–62 international and comparative law, 140 international treaties, 139–40 ius cogens, 139 non-binding sources, 3, 5, 12, 29, 35, 103,140–41, 199–202, 215 status binding norms, 12, 29, 139–40, 161, 214 constitutional status, 140–41, 214 formal status, 139 impact of international law, 141–50 institutional status, 215 judicial attribution, 140 non-binding norms, 139–40, 161, 215 transposition of legal norms, 4, 29 use of foreign law citation of foreign materials, 231 constitutional provisions, 140 contextual factors, 230 convergence, 139 implementation, 139 increasing use, 215 individual judicial approaches, 139, 215 international and comparative law, 140 judicial engagement, 239 judicial reasoning, 239 judicial views, 139 justification, 139–40 highest national courts, 139 legal tradition, 230 nature of case, 230, 232 organisational level, 215 political opinions, 215 precedent doctrine, 230–31 public opinion, 215 French model (highest courts) administrative cases, 45 see also Administrative courts caseload Conseil constitutionnel, 58–59 Conseil d’Etat, 57–58 Cour de cassation, 56–57 Hoge Raad, 55–56, 61 Supreme Administrative Courts, 57–58 civil and criminal cases, 45 competence of review Conseil constitutionnel, 46, 49–50, 58 Conseil d’Etat, 48 Cour de cassation, 46–47, 60 Hoge Raad, 46–47, 51 Supreme Administrative Courts, 47–49 international law use and influence Conseil constitutionnel, 171–72 Conseil d’Etat, 172

261

Cour de cassation, 172 ECHR influence, 146, 171–73 ECtHR decisions, 171–72 EU law influence, 146, 171–72 international sources, 171 international treaties, 146–47 ius cogens, 146 laïcité principle, 172 religious freedom, 172 transnational judicial interpretations, 172 UN texts, 146 judges and staff Conseil constitutionnel, 54–55, 61 Conseil d’Etat, 52 Cour de cassation, 52 Hoge Raad, 51, 61 Supreme Administrative Courts, 52–54 origins, 45 Fundamental rights Canada, 77 constitutional provisions, 76 constitutional values, 76 Europe, 76–77 European Convention on Human Rights, 76–77 see also European Convention on Human Rights globalised context, 78 highest national courts, 76 international treaty provisions, 77 regional human rights regimes, 76 UK Supreme Court, 76 UN Conventions, 76 USA, 77 Global legal environment global community of courts, 2 Global Constitution scenario, 237 Hague Institute for Internationalisation of Law, 237 Legal Borders scenario, 237–38 Legal Internet scenario, 237 Legal Tribes scenario, 237–38 Globalisation see also Judicial internationalisation constitutional norms, 218, 222 convergence, 105–6, 113 effects, 98, 101, 113, 137, 214 foreign law influence, 103–5 fundamental rights protection, 78 global community of courts, 2 globalist judges, 6, 30, 103–6, 109, 227, 229–30 International Court of Justice decisions, 101 international legal instruments, 1 judges’ personal backgrounds

262 Index approach to foreign law, 107–9, 113 individual judges, 107 legal education, 108 prior professional experience, 108, 111–13, 228–29 judicial attitudes, 102 judicial authority, 79 judicial decision-making, 2–3, 68–69, 82, 98, 100, 102–3, 105, 108–9, 214, 217–18, 227, 230, 233–34 judicial interconnection, 1, 5 judicial politics approach to foreign law, 106 individual judicial influence, 107 judicial appointments, 106 reform of courts, 107 Supreme Court of Canada, 107 US Supreme Court, 106–7 judicial views, 98–99, 109 localist judges, 6, 30, 103, 106, 109, 227, 229 systemic changes, 1, 5 Harmonisation citation of foreign law, 200–1 constitutional interpretation, 223, 225 convergence, 5, 15 judicial internationalisation, 234, 238 judicial networks, 92 Highest national courts Anglo-Saxon model see Anglo-Saxon model (highest courts) caseload case selection, 61 comparative view, 61 internal advisors, 62 preliminary rulings, 61 research tasks, 62 cases of public importance, 60 comparative law, 83 comparative research, 59, 61, 67 competence of review, 59–60 composition comparative view, 61 judicial dialogue, 61 non-specialist judges, 61 specific chambers, 61 Constitutional Courts, 60 constitutional issues, 60 dialogue with Executive, 67 final jurisdiction, 36 foreign law, 59–60, 70, 83 see also Foreign law French model see French model (highest courts) fundamental rights, 60, 76 globalisation, 82

human rights protection, 67 internal coordination Conseil constitutionnel, 74–75 Conseil d’Etat, 74–75 convergence, 75–76 Cour de cassation, 74 EU influence, 74 Hoge Raad, 74 judicial decision-making, 76 judicial deference, 75 judicial dialogue, 74–76 national level, 73 Raad van State, 74 specialist knowledge, 75 international law, 83 international relations, 98–99, 109 see also International relations interpretative role, 59–60 judicial networks and exchanges, 83–84, 86, 90–91, 94, 112 see also Judicial networks and exchanges legal sources, 82–83 multiple courts, 36 overseas jurisdiction, 72–73 political power, 60 quality of judgments, 83, 136, 214 Quebec Court of Appeal, 72 relationship with European courts, 67 research method, 62–67 see also Research methodology Scottish appeals, 72 single court, 36 transnational dialogue, 83 visibility, 67 uniform application of the law see Uniform application of the law Hoge Raad amici curiae, 124 case selection, 236 citation academic literature, 123 foreign materials, 123, 200, 202 comparative law influence, 160 use, 194–97, 212–13 competence, 46–47, 51 counsel’s role, 123–24 draft judgments, 129 ECHR references, 123 EU law references, 123 internal coordination, 74, 128 international law influence Brussels Convention, 148 CJEU decisions, 148–49 ECHR influence, 148 ECtHR decisions, 149 EU law influence, 149 international treaties, 148

Index international law use, 173, 177 interveners, 124 judges and staff, 51, 61 judicial deliberations, 128–29 judicial networks and exchanges ECtHR relationship, 96 international exchanges, 95–96, 112 language constraints, 96 organisational matters, 96 procedural issues, 96 substantive issues, 96 time constraints, 96 jurisdiction, 46 preliminary rulings, 47 published judgments apodictic judgments, 135 dissenting opinions, 135–36 judicial reasoning, 135 researching international and comparative law Advocate General, 118–19 judicial deliberations, 117 selected foreign materials, 118 time constraints, 124 uniform application of the law, 73 vertical dialogue, 82 Human rights see also European Convention on Human Rights; European Court of Human Rights; Human Rights Act (1998) constitutional interpretation, 224–25 constitutional norms, 227 fair trial, 49, 28, 34, 117 international relations, 99 privacy and family life, 181 regional regimes, 76 Supreme Court of Canada, 144, 167–68, 181–84 torture, 121, 153, 167–68, 177, 189 UK Supreme Court, 142, 179–80 US Supreme Court, 187–89 Human Rights Act (1998) declarations of incompatibility, 23, 37, 60, 165 fundamental rights, 76 influence, 142 judicial competence, 165 legislative compatibility, 23, 76 parliamentary sovereignty, 23 scope of protection, 23–24 status, 142 International Court of Justice influence, 71, 101, 116, 169–70 International courts judicial assistance, 112 language constraints, 112 national judges

263

improvisation, 112 influence, 110–11 personal experience, 111–12 role, 109 slowness of proceedings, 112 transnational communication, 109 International law application, 139, 141, 214, 223 implementation dualist mechanisms, 141 monist mechanisms, 141 international law influence binding norms,141 Conseil constitutionnel, 147, 171–72 Conseil d’Etat, 172 constitutional status, 141 Cour de cassation, 147, 172 ECHR, 27–28, 146 European legal rules, 27, 146 Hoge Raad, 148–49, 173, 177 legal development, 27 national examples, 27 national legal systems, 26–27 normative change, 27 procedural aspects (legal evolution), 11, 20, 26–28 Raad van State, 149–50, 174–77 Supreme court of Canada, 144–45 transposition of international treaties, 27, 29 UK Supreme Court, 141–43 US Supreme Court, 145–46 use of international law binding sources, 141, 197, 213 common practice, 177 Conseil constitutionnel, 171–72 Conseil d’Etat, 172 Cour de cassation, 172 customary international law, 163 decisions of international organisations, 163 dualist legal systems, 177 global context, 178 harmonisation, 200–201 Hoge Raad, 148–49, 173, 177 international legal norms, 163 judgments of international courts, 163 judicial confrontation, 214 judicial decision-making, 178 judicial interpretation,163, 178 judicial practices, 177–78 monist legal systems, 178 non-binding sources, 198 Raad van State, 149–50, 174–77 Supreme Court of Canada, 166–69 UK Supreme Court, 163–66 US Supreme Court, 169–71 vertical dialogue, 178

264 Index International relations globalisation see Globalisation judicial involvement French approach, 101 global constitutionalism, 99 government institutions, 99 human rights, 99 international and comparative law, 102 internationalisation, 99 judicial independence, 101 legal development, 99 Netherlands, 101 sovereignty issues, 99 Supreme Court of Canada, 99–102 UK Supreme Court, 100 US Supreme Court, 100 judicial networks and exchanges, 83–84, 86, 90–91, 94, 112 see also Judicial networks and exchanges Internationalisation see Judicial internationalisation Internet access to foreign sources, 1 Israel see Supreme Court of Israel Judicial activism constitutional interpretation, 25 judicial law-making, 25 Judicial argumentation citation foreign judgments, 198–99 foreign materials, 199–203 methodological challenges, 203–5, 215–16 style of reasoning, 198 Judicial authority CJEU decisions, 78 ECHR provisions, 78 globalisation, 79 highest national courts, 78–79 see also Highest national courts informal dialogue, 79 international law, 78 judicial leadership, 79 supranational courts, 78 transnational courts, 78 vertical dialogue, 81–82 Judicial autonomy government accountability, 79 highest national courts, 79 see also Highest national courts judicial discretion, 79 judicial leadership, 79 legal sources, 79 vertical dialogue, 81–82

Judicial Committee of the Privy Council uniform application of the law, 72 Judicial competence annulment of legislative provisions, 31 authority of sources, 32 Constitutional Courts, 31 democratic justification, 31 interpretative role, 31 judicial review, 31–32 Supreme Courts, 31–32 Judicial deference constitutional interpretation, 25 internal coordination, 75 judicial practice, 138 Judicial deliberations Conseil constitutionnel, 127 Conseil d’Etat, 127 Cour de cassation, 127 Hoge Raad, 128–29 international/comparative law usage, 124 Supreme Court of Canada, 125–26 UK Supreme Court, 124–25 US Supreme Court, 126–27 Judicial decision-making comparative approach, 30 comparative law influence, 150 comparative law use access to foreign materials, 233 benefit analysis, 232–33 convergence, 227, 229 effective decision-making, 232–33 engagement, 227, 229 globalist view, 227, 229–30 judicial assistance, 233 localist view, 227, 229 methodology, 239 research work, 232–33, 239 resistance, 227, 229 constitutional level, 218 convergence, 30–31 see also Convergence development, 68–69 foreign law influence, 1–4, 29–30, 35, 68–69, 103, 105, 217–18 see also Foreign law globalisation, 2–3, 68–69, 83, 214 globalised context, 2–3, 214, 217–18, 227, 230, 233–34 globalist view, 6, 30, 103–6, 109, 227, 229–30 hard cases, 30 highest national courts, 68 see also Highest national courts increased interconnections, 218 institutional setting, 137, 218 internal coordination, 76 international and comparative materials, 138 international treaties, 214, 218

Index interpretative role, 214 judge’s personal approach binding sources, 4 comparative legal methods, 4 foreign sources, 3–4, 13–14 judicial competence, 31–32 see also Judicial competence judicial internationalisation, 2–3, 30 see also Judicial internationalisation judicial motives, 198, 200–201, 203 judicial opportunism, 203, 205, 213 judicial practices, 68 judicial views, 68 justification of judicial decisions, 11, 28–32 see also Justification of judicial decisions legal argumentation, 223 legal sources, 1, 29–30 legitimacy, 4 localist view, 6, 30, 103, 106, 109, 227, 229 methodology, 4, 198, 203–5, 215–16 see also Methodological challenges prestige of foreign court, 206, 210, 214, 218, 226, 232 public information, 68 quality of judgments, 83, 136, 214 resistance to global influences, 30 shared traditions, 30, 218 societal and legal context, 35 systematic approach, 213 transnational judicial dialogue, 68–69 Judicial dialogue horizontal dialogue human rights, 80 legal development, 80 organisational issues, 80 procedural issues, 80 substantive law, 80 transnational contact, 80 uniform application of the law, 80 informal dialogue, 79 internal coordination, 74–76 transnational judicial dialogue, 68–69, 78, 80, 137 vertical dialogue CJEU jurisprudence, 81 communication through judgments, 81 constitutional rights, 81 convergence, 82 demarcation of boundaries, 81 ECHR provisions, 81–82 ECtHR jurisprudence, 80–81 EU law, 81–82 European Civil Code, 82 Hoge Raad, 82 initiating dialogue, 81 judicial authority and autonomy, 81–82 reciprocal hierarchal link, 81 UK Supreme Court, 81–82

265

Judicial internationalisation best practices, 236 broadcast judicial proceedings, 235 citation of foreign law, 2–4 see also Citation of foreign law constitutional framework, 6 constitutional norms, 219, 223 convergence, 13, 234, 238 see also Convergence ECtHR decisions, 235 effects, 14, 18 European legal integration, 234 fundamental rights, 234–35 future development, 13, 234–37, 239 global legal environment global community of courts, 2 Global Constitution scenario, 237 Hague Institute for Internationalisation of Law, 237 Legal Borders scenario, 237–38 Legal Internet scenario, 237 Legal Tribes scenario, 237–38 globalisation, 99, 234, 236 harmonisation, 234, 238 increased interconnection, 2, 218 individual judicial approach, 236 international treaty regimes, 218 judge’s personal approach, 13 judicial decision-making, 2–3, 30 judicial networks and exchanges, 236, 238 see also Judicial networks and exchanges legal evolution, 217 national legal context, 10 organisational culture, 238 private legal regimes, 238 societal expectations, 234 soft law, 238 South Africa, 219 transnational private regulations, 235 transparency, 234–35 trend towards internationalisation, 2, 217–19 visibility of courts, 235 Judicial networks and exchanges Anglo-Saxon/French models compared, 94 anti-terrorism measures, 84 benefits of exchange, 85, 113 bilateral exchanges, 83, 86, 90–91, 94, 112 communicating courts, 137 Conseil constitutionnel, 93–94 Conseil d’Etat, 92–93 Cour de cassation, 90–92 exchange with foreign courts, 83–84, 137 executive power, 84 foreign delegations, 84–85 forms of exchange, 83 Hoge Raad, 95–96

266 Index human rights issues, 84, 86–87 individual approaches, 138 language constraints, 85, 96 organisational matters, 84, 91, 96 prior professional experience, 113 procedural issues, 84, 86, 96 Raad van State, 96–98 substantive matters, 84, 86, 96 Supreme Court of Canada, 85–88 time constraints, 96, 112 UK Supreme Court, 84–85 US Supreme Court, 88–90 Judicial practices see also Working methods best practices, 137, 236 citation of foreign law, 2–4, 130–32, 136, 199–203 see also Citation of foreign law constitutional framework, 2, 216, 217–18 convergence, 1, 4–5, 14, 137, 217, 234, 238 decision-making, 68 see also Judicial decision-making globalised context, 217–18 judicial argumentation see Judicial argumentation judicial deference, 138 legal evolution, 15 see also Legal evolution margin of discretion, 138 methodological challenges, 203–5, 215–16 see also Methodological challenges selection of comparative materials see Selection of comparative materials time constraints, 96. 112, 118, 124, 203 transnational practices, 218 Judicial review constitutional interpretation, 26 democratic legitimacy, 31–32 judicial competence, 31–32 US Supreme Court, 39 Judicial role administration of justice, 69 constitutional framework, 83 developer of the law Anglo-Saxon model, 78 case selection, 78 civil law systems, 78 highest national courts, 78 horizontal dialogue, 80 judicial authority and autonomy, 78–82 transnational judicial dialogue, 68–69, 78, 137 vertical dialogue, 80–82 fundamental rights protection, 69, 76–78 see also Fundamental rights

guardians of the law, 69 highest national courts, 69, 137 see also Highest national courts judicial authority, 78–79 see also Judicial authority judicial autonomy, 79, 81–82 see also Judicial autonomy judicial-decision-making, 68–69 see also Judicial decision-making judicial leadership court organisation, 79 horizontal dialogue, 79–80 judicial function, 79 legal development, 79 transnational context, 79 vertical dialogue, 80–82 quality of judgments, 83, 136, 214 systemic changes, 69 uniform application of the law, 69–76 see also Uniform application of the law Justification of judicial decisions authority of sources, 29–32, 227 binding sources, 227 Canadian legal system, 228 democratic deficit, 28 differing approaches, 228–29 dualist legal system, 227 Dutch legal system, 228 EU Member States, 227–28 foreign law, 29 French legal system, 228 globalised context, 227, 230 globalist views, 6, 30, 103–6, 109, 227, 229–30 international law influence, 227 judicial competence, 31–32 see also Judicial competence judicial discretion, 230 legal education, 228 legitimacy, 28 localist views, 6, 30, 103, 106, 109, 227, 229 monist legal system, 227 non-binding sources, 227 professional and personal experience, 228–29 substance of legal sources, 228 transnational context convergence, 227, 229 engagement, 227, 229, 239 resistance, 227, 229 UK legal system, 228 unelected judges, 28 Language constraints, 85, 96, 112, 114–15, 207, 210–12 selection of comparative legal materials, 206, 214, 226

Index see also Selection of comparative legal materials shared language, 231 Legal evolution constitutional (in-)flexibility, 217 see also Constitutional (in-)flexibility constitutional rules, 5 constitutional theory, 15–18 see also Constitutional theory future development, 217 judicial internationalisation, 5, 217 see also Judicial internationalisation judicial practices, 15 legal and societal interaction, 5 meaning, 16 normative change, 5–6, 15, 17–18, 20, 24–25, 27–28, 218, 223, 226 procedural aspects, 5, 11, 20, 15, 217–27 see also Procedural aspects (legal evolution) recourse to foreign law, 217–18 substantive aspects, 5–6, 11, 15, 217–18, 227–33 see also Substantive aspects (legal evolution) Legal sources authority of sources, 29–32 binding sources, 12, 29 EU law, 29 foreign law, 1–3, 12, 29–30, 139–41 see also Foreign law judicial scrutiny, 1–3 nature of sources, 29 non-binding sources, 3, 5, 12, 29–30, 35 transnational legal instruments, 4, 29 Legal systems globalisation, 1, 5 see also Globalisation systemic changes, 1, 5 Legal tradition civil law, 32–33 common law, 32 foreign law use, 230 precedent, 32–33, 230–31 see also Precedent selection of comparative legal materials, 206–7, 209–10, 214, 216 see also Selection of comparative legal materials shared tradition, 207, 209–10, 218, 231 substantive factor, 11 Methodological challenges changes in case law, 204 CJEU decisions, 203 comparative law usage, 204–5 Dutch courts, 205 ECtHR decisions, 204

267

EU law, 203 international law, 203 judicial decision-making, 203, 205 Supreme Court of Canada, 204–5 understanding foreign rules, 204 UK Supreme Court, 203–5 US Supreme Court, 204–5 Mirror principle international law influence, 142 Networks and exchanges see Judicial networks and exchanges Precedent binding sources, 33 civil law systems, 33 flexible use, 32–33 foreign judgments, 33 horizontal precedent, 32 reversal, 33 stare decisis doctrine, 32, 230–31 vertical precedent, 32 Privatisation effects, 13 Procedural aspects (legal evolution) constitutional interpretation, 11, 15, 20, 24–26, 223–27 see also Constitutional interpretation constitutional norms, 11, 20–21, 25 see also Constitutional norms international law influence, 11, 20, 26–28 modalities of constitutional revision, 11, 20–23 see also Constitutional revision Published judgments civil law tradition, 129 common law tradition, 129 Conseil constitutionnel, 133 Cour de cassation, 132–35 dissenting opinions, 129 Hoge Raad, 135–36 legal sources, 129 separate opinions, 129 single judgment, 129 style of reasoning, 129 Supreme Court of Canada, 130–31 UK Supreme Court, 129–30 unity, 129 US Supreme Court, 131–32 Raad van State comparative law influence, 160–61 usage, 194–95 competence, 48–49 composition, 53–54 Constitutional Law Commission, 118–19 European Law Commission, 118

268 Index internal coordination, 74 international law influences CJEU decisions, 150 ECHR influence, 149 ECtHR decisions, 149 EU law influence, 149–50 international law use, 174–77 judicial networks and exchanges international contacts, 96–98, 112 learning about foreign law, 96 researching international and comparative law academic research, 119 EU law, 118 internal committees, 118–19 support staff, 118–19 time constraints, 118 Research methodology academic publications, 66 case law, 66–67 comparative methods, 6–8 constitutional theory, 6, 8, 10 country reports, 65 court selection, 7–8 databases, 66–67 fundamental rights protection, 9 highest national courts, 6–7, 11–12 see also Highest national courts interviews comparative law usage, 241 Conseil constitutionnel, 62 Conseil d’Etat, 62 Cour de cassation, 62 duration, 64 future role of the court, 242 Hoge Raad, 62 institutional arrangements, 241 interview letter, 240–41 lines of inquiry, 64–65 personal background, 242 questions, 241–42 role of court, 241 semi-structured interviews, 64 Supreme Court of Canada, 62 UK Supreme Court, 62 US Supreme Court, 63 judge’s personal approach, 6–7 judicial accountability, 9 judicial deliberations, 9 judicial dialogue, 6, 9 judicial views, 8, 10 legitimacy, 9 note-taking, 65 public information, 65 qualitative analysis, 7, 9–10, 30, 33–35, 62, 66 recourse to foreign law, 10 representative information, 63–64

results, 65–66 scope of research, 8–10 socio-legal research, 6, 13 speeches, 66–67 Researching international and comparative law see also Comparative law; International law access to sources, 119 Conseil d’Etat, 117–18 Cour de cassation, 116 delays for judgment, 119 Hoge Raad, 117–18 judicial affinities, 114 judicial assistants, 114 judicial decision-making, 114 practical constraints, 119 Raad van State, 118–19 research assistance, 119 Supreme Court of Canada, 115 UK Supreme Court, 114–15 US Supreme Court, 116 Rule of law constitutional norms, 221 constitutional theory, 17 meaning, 17 Scottish appeals devolution issues, 72 jurisdiction, 72 uniform application of the law, 72 Selection of comparative legal materials Conseil constitutionnel, 212 Conseil d’Etat, 212 Cour de cassation, 212 Hoge Raad, 212–13 language constraints, 206, 212, 214, 226 non-binding foreign materials, 206 prestige of court, 206, 210, 214, 218, 226, 218, 232 Raad van State, 213 Supreme Court of Canada, 206–9 tradition, 206–7, 209–10, 214, 226 UK Supreme Court, 206 US Supreme Court, 209–11 Soft law Dutch courts, 196–97 foreign law, 12 judicial internationalisation, 238 UK Supreme Court, 181 South Africa foreign law use, 219 Bill of Rights, 219 judicial internationalisation, 219 see also Judicial internationalisation Substantive aspects (legal evolution) civil law tradition, 230 common law tradition, 230

Index contextual factors, 230 efficiency of decision-making, 11, 34–35, 232–33 justification of judicial decisions, 11, 28–32 see also Justification of judicial decisions legal tradition, 11, 32–33 see also Legal tradition nature of the case, 11, 34, 207–8, 230, 232 persuasive legal argument, 231 precedent doctrine, 230–31 prestige of foreign court, 206, 210, 214, 218, 226, 232 shared language, 231 shared tradition, 231 sources from other jurisdictions, 232 style of reasoning, 231 Supreme Court of Canada amici curiae, 122 caseload cases of public importance, 43 leave to appeal, 43–44 publication of decisions, 44 comparative law influence Charter of Rights and Freedoms, 24, 38, 73, 143, 162, 182–83, 204, 208 citation of foreign law, 151–54 common law jurisdictions, 208 Commonwealth jurisdictions, 154, 162, 185 Cour de cassation, 185 ECtHR decisions, 152, 181–84 fundamental rights, 152 judicial decision-making, 152–53 judicial interest, 152–53 multicultural influences, 154 Supreme Court of Israel, 152, 168 unimplemented treaties, 152 comparative law use balancing of interests, 208–9 capital punishment, 183–84 Charter of Rights and Freedoms, 182 choice of legal systems, 207 common law jurisdictions, 208 community of interpretation, 206 defamation law, 185 ECtHR decisions, 181–84, 208–9 extradition cases, 183 foreign case decisions, 181–83 freedom of association, 183 freedom of expression, 186 French law, 185 Guantanamo detainees, 184 human rights cases, 181–84 intellectual property law, 185 judicial decision-making, 181, 185–86 language constraints, 207

269

methodological challenges, 204–5 moral values, 186 non-binding foreign sources, 186, 206 perceived similarity, 208 Quebéc cases, 185, 207 search and seizure cases, 186 selection of materials, 206–9 shared societal practices, 186 shared tradition, 207 subject matter of case, 207–8 Swiss law, 185 US law, 185 competence of review, 37–38, 60 composition of panel, 41 constitutional interpretation ECtHR decisions, 225 constitutional flexibility, 224 judicial function, 224 judicial review, 224 legal questions, 121 pith and substance doctrine, 224 counsel’s role, 121 establishment, 37 foreign law usage, 121 fundamental rights, 38, 152 international law influence customary international law, 167–68 genocide cases, 169 human rights protection, 144, 167–68 implementing international law, 144 international obligations, 144 international trade law, 144 international treaties, 144, 166–67 international tribunal decisions, 169 judicial decision-making, 144 public support, 144–45 role of international law, 67 societal values, 145 Supreme Court of Israel decisions, 152, 168 transnational judicial communication, 166 UN Conventions, 168 international relations, 99–102 interveners, 122 judges and staff, 40–41 judicial appointments, 40–41 judicial deliberations, 125–26 judicial networks and exchanges bilateral exchanges, 86 developing countries, 87 ECtHR relationship, 86–88 foreign delegations, 85, 87 human rights issues, 86–87 international exchanges, 85–88, 112 procedural issues, 86 substantive issues, 86

270 Index judicial politics, 107 jurisdiction, 37–38 law clerks, 41, 115 published judgments concurring opinions, 130–31 dissenting opinions, 130–31 foreign precedents, 130–31, 136 majority decisions, 130–31, 136 unanimous decisions, 130–31 researching international and comparative law citation rates, 115 internet access, 115 language constraints, 115 law clerks, 115 research by judges, 115 Supreme Court of Israel influence, 152, 168, 179, 191 Torture protection against torture, 121, 153, 167–68, 177, 189 Tradition see Legal tradition Transnational legal orders development, 4 EU law, 5 international treaty law, 5 national legal borders, 5–6 UK Supreme Court amici curiae, 120 caseload case selection, 43 permission to appeal, 40, 42–43 comparative law influence citation of foreign judgments, 151 non-binding sources, 150–51 reasoned arguments, 151 unimplemented treaties, 151 comparative law use anti-terrorism measures, 179 Australian case law, 180 Commonwealth sources, 206 contract and tort cases, 180 criminal cases, 180 ECHR provisions, 179 European sources, 206 freezing of assets, 179 human rights protection, 179–80 methodological challenges, 203–5 non-binding case law, 178, 180–81 Principles of European Contract Law, 181 qualified privilege, 178–79 racial discrimination, 179 right of privacy, 181 selection of materials, 206

soft law instruments, 181 Supreme Court of Israel decisions, 179 UN Resolutions, 179 US sources, 206 competence of review, 37, 59–60 composition of panel, 40, 125 counsel’s role, 120 declarations of incompatibility, 37, 60, 165 developer of law, 166 drafting of opinions, 125 establishment, 37 guardian of law, 166 international law influence administrative redress, 142 Brussels Convention, 143 CJEU decisions, 142, 164 dualist legal system, 141 ECHR influence, 141–43, 163–66 ECtHR decisions, 142–43, 164–66 EU law influence, 141–43, 163 globalisation, 166 Hague Conference Conventions, 143 Human Rights Act (1998), 142 mirror principle, 142 public law cases, 141 international law usage international legal sources, 163 judicial dialogue, 164 international relations, 100 judges and staff, 39–40 judicial appointments, 40 judicial assistants, 40 judicial deliberations, 124–25 judicial networks and exchanges foreign courts and delegations, 84 language constraints, 85 procedural issues, 84 substantive matters, 84 transnational contacts, 85 jurisdiction, 37 permission to appeal, 40, 42–43 published judgments academic sources, 130 concurring opinions, 129 dissenting opinions, 129 foreign legal materials, 130 lead opinion, 129 majority opinions, 129–30, 136 separate opinions, 129 specialist interests, 129 transparency, 130 researching international and comparative law foreign law usage, 114, 130 judicial assistance, 114 language constraints, 114–15 Practice Direction, 114 research by judges, 114–15, 136

Index third-party interveners, 120–21 vertical dialogue, 81–82 visibility, 40 Uniform application of the law Benelux Court of Justice, 71–72 Caribbean jurisdictions, 73 Cour de cassation, 73 CJEU decisions, 70–71 EU law, 70 European Convention on Human Rights, 70 federal systems, 70 foreign legal sources, 70 guarantee, 69–71 highest national courts, 69–70, 72 see also Highest national courts Hoge Raad, 73 horizontal dialogue, 80 internal coordination, 73–76 internal jurisdictions, 72–73 international level, 70–71 international treaty provisions, 70 Judicial Committee of the Privy Council, 72 judicial coordination, 70 multiple highest courts, 70 national law, 69–70 overseas jurisdiction, 72–73 Quebec courts, 72 Scottish appeals, 72 specific conditions, 72 supranational level, 70–71 transnational interaction, 70 transnational rules and judgments, 70 US Supreme Court amici curiae briefs, 122, 188 caseload authorised appeals, 44 cases of public importance, 44 certified questions, 44 certiorari, 44 extraordinary writ, 44 increasing level, 44 original action, 44 policy implications, 44 cases on appeal, 39 comparative law influence absence of authority, 155 citation of foreign law, 155 constitutional change, 155 constitutional review, 158 controversy, 154, 156–57, 187, 214 critics, 155–57 ECHR provisions, 188 ECtHR decisions, 187, 225 federalism, 155

271

formal authority, 156 judicial decision-making, 29, 154–55 judicial interpretation, 155 judicial reasoning, 155 non-binding sources, 154–55, 162, 187, 190 political interests, 156 public opinion, 157 substance of legal sources, 156 supporters, 155 xenophobia, 157 comparative law use capital punishment, 189–90 constitutional cases, 187–88 controversy, 154, 156–57, 187, 214 Dutch case decisions, 211 ECHR provisions, 188 ECtHR decisions, 187, 225 French case decisions, 211 gender discrimination, 187 helpful guidance, 211 human rights cases, 187–89 International Law Reports, 211 international opinion, 189 language constraints, 210–11 methodology, 190, 204–5 moral standards, 190 non-binding foreign law, 187, 190 polarised views, 190 prestige of court, 206, 214, 218, 210, 226, 232 selection of materials, 209–11 shared tradition, 209–10 US exceptionalism, 189 women’s rights, 187 competence of review, 38–39, 60 composition of panel, 42 constitutional interpretation constitutional review, 158, 224 ECtHR decisions, 225 international law influence, 145–46, 224–25 draft judgments, 126 establishment, 38 foreign law citation, 122, 136, 229, 238 learning about foreign law, 89–90 non-binding foreign law, 3, 5, 42, 71, 154–55, 162 freedom of expression, 89 impeachment, 41 international law influence case decisions, 145 constitutional interpretation, 145–46, 224–25

272 Index extradition proceedings, 170–71 globalisation, 145 habeas corpus applications, 169–70 International Court of Justice decisions, 169–70 international sources, 169–71 international treaties, 145, 170 role of international law, 67 statutory interpretation, 145 Vienna Convention, 169 international relations, 100 judges and staff, 41 judicial appointments, 41–42 judicial deliberations, 126–27 judicial networks and exchanges academic exchanges compared, 89 extraterritoriality, 89 institutional challenges, 89 international exchanges, 88–90 judicial politics, 107 judicial review, 39 jurisdiction, 38–39 law clerks, 42 published judgments concurring opinions, 132 dissenting opinions, 132 foreign law, 132, 136 judicial reasoning, 131 seriatim opinions, 132 unanimous judgments, 132, 136

recusal, 42 researching international and comparative law academic writings, 116 law clerks, 116 research by judges, 116 Working methods best practices, 137, 236 constitutional norms, 137 convergence, 1, 4–5, 14, 137 efficiency, 136 foreign law usage, 136 globalised context, 113, 117, 136–37 hard cases, 138 judicial deference, 138 judicial deliberations, 124–29 see also Judicial deliberations judicial reasoning, 136 margin of discretion, 138 organisation of courts, 113 press releases, 134–35, 137 published judgments, 129–36 see also Published judgements quality of judgments, 83, 136, 214 research of international and comparative law, 114–20 see also Researching international and comparative law role of counsel, 120–24 see also Counsel’s role transnational influences, 113 transparency, 136