Fourth and Final Version
July 2008
Fred Bruinsma
A Socio-Legal Analysis of the Legitimacy of Highest Courts
The message Lasser wants to bring home in his Judicial Deliberations should be clear at this point: the French Cour de cassation is not the antihero of the US Supreme Court in terms of transparency and legitimacy like it is depicted in American comparative legal scholarship. To arrive at this insight a broader picture than a mere comparison of judicial verdicts is needed. For a good understanding of the Cour de cassation one cannot refrain from the institutionalised interaction, which takes place in and around the room at the top. ‘(W)hat characterizes the French legal system is that it is managed by a number of specialized, elite, and highly informed institutional players who engage in an ongoing, detailed, and high-level dialogue about how to deal with pressing or merely budding legal problems’ (p. 192). Apart from the bench other institutional actors play their own role in the making of judgments of the French Cour de cassation: specialized attorneys submit their pleadings, advocate generals in their capacity of in-house counsel deliver advisory opinions, one of judges on the bench is assigned with the task of writing a report on the case and academic court watchers explain and evaluate the judgment with comments (doctrinal ‘note’). Whereas the judgment in itself is not very transparent, to say the least, legitimacy is there as a word is enough to the wise inner circle of legal professionals.[1] What is at first sight a succinct, cryptic and syllogistic reasoning on the basis of code articles, is in fact motivated by policies and desirable outcomes one will find more about in the advisory opinions, the judicial reports and the academic notes. Lasser makes his point convincingly: highly qualified legal professionals who do their job in specialized roles operate a complex machine. The realistic portrait of the Cour de cassation consists of an account of the ‘radical bifurcation’ between the official judgment and the unofficial discourse in the other written documents.
May the chapters 2 (The French Bifurcation) and 6 (France: How is the Discursive Bifurcation Maintained?) find their way in comparative law in the USA, among scholars and in comparative law courses.
Introduction: institutional design or cultural variation
Lasser wants more than an accurate picture of the prototype of a civil law court, however. He offers us a very specific tool for a comparative analysis of highest courts, namely the integration/bifurcation distinction. The reader of Judicial Deliberations is invited to think that the US Supreme Court and the French Cour de cassation reach comparable levels of transparency and legitimacy along different roads. The contrast between the transparent judicial opinions of the US Supreme Court (unified or integrated decision making) on the one hand and the bifurcation at the top of French legal infrastructure – i.e. between the main road of the official judgment, and the secondary road of unofficial discourse lending transparency to the official judgment -, on the other hand, has led Lasser to believe that institutional design is the clue to assess the legitimacy of judicial deliberations. However, since apart from the judgment only the academic notes are published there is still a lack of transparency in France and assuming that only a few specialists are interested[2] the legitimacy of court’s rulings everywhere is restricted to internal legal culture, ‘the values, ideologies, and principles of legal professionals who work within the magic circle of the legal system’ (Friedman, 1975:194).
Moreover, and more significant, he merely suggests but does not prove the hypothesis that different institutional arrangements are related to different styles of judicial deliberations.
(T)he bifurcation/integration distinction is not the cause of the Franco-American judicial difference, nor simply a reflection of it. It is both a cause and an effect, a formal and material distinction that reflects and produces a significant difference in how French and American jurists conceive of law and of the judicial role, as well as how they engage in legal and judicial practice. (Lasser, p. 299).
As soon as we introduce other highest courts it becomes clear that this correlation between structure and culture is spurious, thus is my thesis in this chapter.
There is nothing wrong with separate portrait studies of highest courts (cf. case studies of anthropologists) but tools for a comparative analysis of judicial deliberations have to prove their usefulness and added value in comparison with standard distinctions, such as between judicial activism and restraint.[3] Just as the French Cour de cassation does not receive a fair treatment by American comparatists but serves as the ideological opposite of the US Supreme Court, Lasser includes the ECJ because it seems to fit in his model (‘the French roots of the European Court of Justice’, p. 299). According to him, the ECJ is characterized by a moderate bifurcation since the advisory opinions of the advocate generals are published (explicit operational definition, on e.g. pp. 13-4, 203, 236) and both opinions and judgments are guided by meta-teleological interpretation (notion conveyed in ch. 7: The ECJ: The French Bifurcation Reworked). In the next paragraph I will suggest a more straightforward explanation of the EJC’s interpretation style, which has nothing to do with its moderate bifurcation. The ECJ apparently is the first victim of Lasser’s deficient approach: ‘the structurally similar bifurcation of both Cour de cassation and ECJ discourse neither results in identical forms of argument and reasoning nor reflects or produces interchangeable judicial contexts or mentalités’ (p. 161). I agree but this concession undermines his claim that institutional design and style of judicial deliberations are related to each other.
Lasser is overreaching because the legitimacy[4] of judicial deliberations in highest courts is not determined by the institutional dichotomy of integration or bifurcation. This is the strong version of Lasser’s hypothesis, which can be distilled from the citation above as follows: bifurcation or integration is a formal and material distinction that produces a significant difference in how French and American jurists conceive of law and of the judicial role, as well as how they engage in legal and judicial practice. Most of the time Lasser falls back on the weak version, however, which merely states that the structure of integration or bifurcation is an essential characteristic of any portrait study. The introduction of other courts reveals the crucial impact of other factors than the integration/bifurcation distinction. A fourth highest court is the Dutch Supreme Court, in particular the Civil Chamber and the surrounding network thereof, the subject of my PhD (Bruinsma, 1988). Other chapters in this volume make clear that there is no good reason to privilege the ECJ at the detriment of the European Court of Human Rights (ECHR).[5] The ECHR is interesting because it is an integrated court with separate opinions, just like the US Supreme Court.
A portrait gallery of five highest courts
For the purposes of this contribution, i.e. a critical appraisal of his comparative analysis of highest courts, I will introduce in this section two other variables, namely political profile and recruitment field, but first a rephrasing of Lasser’s account of the French Cour de cassation in socio-legal terms is needed. Whilst he leaves the key concept ‘institution’ undefined and treats ‘(legal) culture’ as a context variable, my point of departure is Stinchcombe’s definition of institution (1968: 108-18), which refers to the process of structuring culture:
By an ‘institution’ I mean a structure in which powerful people are committed to some value or interest. The key to institutionalising a value is to concentrate power in the hands of those who believe in that value. It can be arranged that they should believe in it by surrounding powerful roles with rewards and punishments that make it in their interest to believe in the value.
The Cour de cassation is the power centre at the top of the judicial pyramid. Judges and advocate generals are graduates of the ENM (École nationale de magistrature) – a highly selective institution itself. New incumbents for the two other institutional roles, i.e. academic commentators and the specialized bar, are recruited in a similar selective way. Stinchcombe formulates a theory of institutional self-replication: how does it happen that succeeding generations of power-holders have the same values? His answer: ‘Power-holders shape their successors in power by (a) control over selection, (b) control over socialization of elites, (c) control over the conditions of incumbency in a powerful role, and (b) their symbolic value as ego-ideals for ambitious young men.’ The small world of the Cour de cassation is a coterie of self-appointed legal specialists who have been socialized to believe in the ‘raison d’être’ of the power centre: the Cour has interpretative authority in the shadow of legislative supremacy. This close harmony of institutional self-replication and internal legal culture results in a low political profile, which can only be disturbed from the outside. In these circumstances of old boys networks and closed shops the risk of collusion looms large but Lasser assures us that ‘the French legal system possesses a dominant and particular French republican “étatiste” mentalité that animates and justifies the conceptual and institutional structures just described’ (p. 168). What is his evidence and how does he present it? ‘(I)n my fairly extensive experience interviewing and debating with members of the French magistrature, I have never come away from such discussions with an impression of insincerity’ (p. 168). Lasser is unforgivably silent about his empirical methodology: no list of interviewees, and not an appendix on research methodology. This lack of transparency affects the legitimacy of his book, and the validity of his portrait of the Cour de cassation.
The Dutch Supreme Court (‘Hoge Raad’) fits in between the Cour de cassation and the ECJ. In Lasser’s terms the Dutch highest court in private law, criminal law and tax law, is characterized by a moderate bifurcation similar to the ECJ as the advisory opinions of the advocate generals are published. Another similarity is that the judges abhor, and thus do not practice, the cryptic style of the judgments of the French Cour de cassation. However, in other aspects the Dutch highest court resembles the Cour de cassation but with relevant differences. As in France a basic tenet of legal culture is parliamentary sovereignty[6] but Dutch internal legal culture has no difficulties to accept case law as another source of law. Moreover, the top of the judiciary has far less control over successors and other role incumbents. One of the alleged virtues of the Dutch judiciary is that it is not built exclusively upon career judges, i.e. graduates from the magistrates’ academy, and with an eye on the figures, less and less so. Whereas in 1974 57 per cent had been to the magistrates’ academy, in 1986 the percentage of career judges had decreased to 45 per cent, and it further decreased to a mere 27 per cent in 2001. What holds true for the judiciary in general is also true for the Supreme Court: in the period 1988-2002 (n=41) the Court was composed of former judges (65 per cent), prosecutors (10 per cent), practicing lawyers (10 per cent), academics (7 per cent), and business people (7 per cent). The on paper high political profile has been successfully reduced to a low political profile as the Hoge Raad anticipates the prevailing trend in their recommendations to Parliament.[7] Thirdly, only practising lawyers registered at the district of The Hague, the seat of the Hoge Raad, are allowed to submit pleadings with the Civil Chamber but even the concentration of this specialist activity at a few prestigious law firms[8] falls short of the monopoly position of the Ordre des Avocats au Conseil d’Etat et à la Cour de cassation. In sum, compared to the Cour de cassation the institutional self-replication is less specific and more ambiguous but the Hoge Raad is also a small world and a niche in society (see Davids in this volume).
The EJC and the ECHR recruit their judges from the member states of the European Union and the Council of Europe, one judge for every member state (27, and 47 respectively), who serve renewable six-years terms. Both courts have a broad recruitment field: apart from jurists who are qualified for the highest judicial offices in their home countries, also ‘jurisconsults of recognized competence’ are mentioned.[9] In Lasser’s scheme the two European courts are relevant to compare since the ECJ has a bifurcated structure and the ECHR an integrated structure. Does this structural difference affect the style of judicial deliberations? Less so than the recruitment process, is my answer. Compared to the low political profile of the Cour de cassation and the Hoge Raad on the one hand and the high political profile of the US Supreme Court on the other hand (nominations are political), the political profile of both European courts is moderate. Candidate judges are first selected at a national level and next discussed at the level of the European institution.[10] The ECJ and the ECHR are at the receiving end in this respect as they have no say in the selection process. They can only hope for seasoned jurists who are still susceptible for socialization processes in their new surroundings, and who put their loyalty vis-à-vis the member state at bay.
My explanation of the prevailing meta-teleological interpretation in the ECJ is that judges and advocate generals are chosen because they are in favour of the process of European integration. ‘(T)he EEC Treaty, albeit concluded in the form of an international agreement, nonetheless constitutes the constitutional charter of a Community based on the rule of law’, thus ventured the ECJ already in December 1991.[11] What is self evident from the perspective of the ECJ, is less so from an outsider’s perspective: the EU member states are still recovering from the blows delivered by an external legal culture of Europe-scepticism in the referenda in France and the Netherlands in 2005, and Ireland in 2008.[12]