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Functions of Judicial Opinion and the New Member States (draft paper)
Sinia Rodin
Reading Prof. Lasser's book is eye-opening. I gained my basic legal education in communist Yugoslavia (Croatia). I earned my Master's degree in the United States, and studied in Italy and Germany. My academic work is closely related to the European Union. As a result of my professional development I embraced the following basic assumptions about law:
law is defined not by its black letter but by its meaning;
definition of what the law is (meaning of law) is a function of interaction of multiple actors;
discoursive definition of law results in "politicization" of law by bringing regulatory purposes and policies into legal analysis;
participants to the discourse have different strenghts and faculties to contribute to the definition of law;
once defined, law is subject to permanent re-interpretation through legal and social discourse.
Appeal of these assumptions owes much to my personal rebellion against socialist law legal formalism and autoritarianism. Yet, as Prof. Lasser has shown, the rabbitt hole is much deeper then one usually anticipates.
In this paper I first tried to outline the ten functions of judicial opinion, and to systemize Prof. Lasser's findings concerning the 3 legal systems he analysed. In the second, textual part I, first, proposed that certain elements of communist legal culture may become a legitimate part of mainstream legal discourse in Europe and, second, outlined some of those elements. I conclude with an expectation that post-communist legal systems will develop in direction of pluralist legal discourse.
Ten functions of judicial opinion
Function of Judicial OpinionFranceEUU.SOvertCovertOvertCovertOvertCovertDispute settlement
Primary function of the judiciary is to settle disputes between parties+-Dispute settlement, interpretation of law, Community goals-+-Law making function
Statement of law, possibly for a source of law (at least inter partes)Law exclusively inter partesLively internal discourse, awareness of law-making functionEven in 234 proceedings (AG Lenz in Costanzo)-Law erga omnes-Persuasive function
Source of persuasive authority for other courts Judgments are criptic, persuasion absentScholarship source of persuasive authorityMeta-P's Direct contact with MS's courtsPower of argument-Unifying function
Concretization of law, judicial opinions define meaning of law and reduce legal uncertaintyOutcome oriented certainty, law based argumentsPolicy arguments considered internallyOutcome oriented
Self-grandizingMeta-P's
Also in substantive law (FMG, equality)Argument oriented certaintyFormal and policy argumentsDemonstrative and legitimating function
Legitimacy of judicial process requires transparency which can be best served by presenting judicial reasoning to the public-Professional legitimacyLegitimacy as one of the Meta-P's-+-Corrective function
Exposure to public scrutiny contributes to self-discipline of judgesDeliberations intransparent, no public scrutinyPolicy choices debated cloaked into legal syllogismDeliberations intransparent, limited public scrutiny-Deliberations transparent, public scrutiny possible-Pluralistic function
Enabling public discourse about functioning of the legal system--Disclosing public controversiesAuthorative solving of public controversies by Meta-P's+-Democratic function
Providing for a feedback to the legislature about how laws are applied in practice-Indirectly by "statist" engagement of legal commentatorsActive inter-institutional dialogue-+-Informative function
Information to citizens how their individual rights are protectedCriptic, result orientedIndirectly, through legal scholarshipIndividual rights protection one of the Meta-P's-Substantive, argument oriented-Didactic function
Provide for didactic material for instruction of lawMemory exerciseIndirectly, through legal scholarshipFormal and substantive elements of opinion exposed-Substantive analysis, argument oriented-
Opening the Pandora's box
Prof. Lasser's book has nicely shown how different courts in different jurisdictions entertain different types of legal discourses. It also exposed the differences in legal discourses, and how those discourses contribute, or indeed do not contribute, to a more transparent and more pluralistic legal culture.
I believe that it is not difficult to agree that the first step in that process is divorce of legal analysis from syllogistic exercise. There are two arguments advocating for such divorce. First, as it was suggested by John Dewey, legal logic is meaningless in absence of policy considerations. Taking example of the famous syllogism, () the issue is not whether Socrates was mortal, the point is whether this mortality would or should occur at a specified date and in a specified way. Second, syllogistic reasoning is sterile. For a syllogism to be correct, conclusion can contain only what is already contained in the premises. In other premises control the conclusion, but conclusion brings about nothing new. This gives enormous power to the judiciary which can affect the outcome of litigation by controlling the premisses, without ever admitting its law-making role. This is what I believe Prof. Lasser meant by expression "cloaking equity judgments in legal form" If judicial function is merely to concretize and state what has already been set by the legislature, then no persuasive authority is needed as there is nothing to persuade to, the meaning of law is set in advance, the public has nothing to discuss about or learn from a judicial decision what has not already been written in the law. In other words, analysis of judicial reasoning is possible only after Pandora's box of legal syllogism is opened, and only after mechanical application of law is renounced.
Changing the nature of discourse with the new Member States
Although the moment of accession to the EU has largely ceremonial character, it makes at least one difference of gigantic importance it changes the nature of discourse between the old and the new Member States.
Legal culture that developed in Europe's West, when confronted with Central and East European legal culture, in process of accession assumed position of the dominant legal culture as understood by Iris Marion Young. The dominant position of that legal culture was taken for granted and was understood as universal.
That understanding, hardly contested in legal and political theory, served as an implicit justification for the so-called conditionality policy that was widely practiced in pre-accession period. Method of communication that conditionality implies can be best described by what Paul Feyerabend calls guided exchange. In such form of communication, (...) some or all participants adopt a well specified tradition and accept only those responses that correspond to its standards. Problem emerges in a situation where one side, explicitly or implicitly refuses to accept standards of another legal tradition and insists on free exchange, i.e., on such communication where () the participants get immersed into each others ways of thinking, feeling, perceiving to such an extent that their ideas, perceptions, world views may be entirely changed. I find important that, due to nature of European Law which does not apply to purely internal situations in Member States, a complete guided exchange between the EU and candidate countries is not possible, and that one part of interaction between the EU and its Member States will always remain in form of free exchange. Once becoming members of the EU, legal cultures of the new Member States are taken to be assimmilated to the dominant legal culture, and free exchange becomes a dominant form of communication. But is that really so? In my earlier paper I argued that there are numerous instances of semantic dissonance that exist in discourse between legal professionals and citizens in general, in old and new Member States. Among those are different understanding of the Rechtstaat, different approaches to normativity of constitution and different understanding of separation of powers. Those differences were not harmonized and still exist in legal discourse, which has now taken form of free exchange.
It is not easy to find hard evidence of post-accession free exchange of CEE legal reasoning. One possible instance is refusal to recognize indirect discrimination and insistance on discriminatory intent as condition for violation of Art. 14 of the European Human Rights Convention in Czech Roma Education Case. In that Case the European Court of Human Rights decided that placement of Roma children in "special schools", in fact schools for children with mental disabilities, where proportion of Roma children in such schools amounts to 80% to 90% of all pupils, does not amount to discrimination prohibited by Art. 14 of the Convention. Four out of seven judges hearing the case were from the non-EU States, notably from Hungary, Czech Republik, Lithuania and Ukraine.
What are then, elements of Central and East European legal culture that have survived the transition and have become a part of free discourse in the European Union?
Heritage of Kelsen and neglect of Ehrlich
One of the basic traits of Central European legal culture is reliance on the concept of Grundnorm as defined by Hans Kelsen. His pure theory of law influenced not just legal reasoning, but how judicial decisions were published and made generally available, as well as the choice of form and scope of their publication. Kelsen understood the legal system as a system of norms where a plurality of norms forms a unity, a system, an order in which validity of the norms can be traced back to a single norm as the ultimate basis of validity. Legal rule is valid not by virtue of its content, but because it was arrived at in a certain way Process of adjudication, according to Kelsen, amounts to concretization of abstract legal rules and is, therefore, by necessity bound to remain within the four corners of the more abstract legal rule. There is no innovation or residual contents of a judicial decision that does not follow directly from a higher norm and ultimately from the Grundnorm to which the entire legal system owes validity.
In contrast to Kelsens theory Eugen Ehrlich described how law emerges from individual cases. Leges Barbarorum emerged as codification of penal practice. Judicial decrees begin to awaken general interest. There are people who write them down, gather them, arrange them, and at the same time on all sides there arises a demand that every new legal case that is at all similar to an older one shall, so far as possible, be decided according to the same Legal Provisions In this way judicial decisions become Legal Provisions for they contain the norms for the decision of future cases
In many aspects Kelsen's and Ehrlich's theories are incommensurable, and juxtaposing their theories serves illustration purpose only. Ehrlich is not concerned with systemic considerations. His evolutionary theory of law is in many respects concerned with law-making events that are antecedent to Kelsen's view of the world. Nevertheless, two important differences can be noticed between their theories. The first one related to creation of legal rules and their answer to the question what comes first legislation or adjudication. The second difference, which reaches far beyond the chicken-egg dilemma, refers to the question where does the justification for legal rules come from.
For purposes of the present discussion it is important to reiterate that Kelsens deductivist pure theory of law is locked within the legal argument, while Ehrlichs inductivism seeks to justify law within a given social context. Accordingly, in Kelsens world, what matters, and matters only, in a judicial decision is its holding which has to be based in a higher legal norm. In Ehrlichs world, validity of judicial decision does not depend exclusively on the higher norm but on expectations that previously established principles will be lived up to, and ultimately, on social circumstances that gave rise to the dispute. Validity of judicial decision, and even more its legitimacy, is highly dependant on consistency of the holding with the reasoning of the judge, as well as on social acceptance of the outcome. Such acceptance can be ensured only in circumstances where transparency and rationality of judicial process are generally recognized.
Communist Heritage
Kelsen's understanding of the legal system, particularly its inherent hierarchy, was attractive to communist legal scholars. So was insistence on the law making process where legislation is prior and superordinate to adjudication. In communist era the interpretative role of the judges was further reduced while legislative branch was understood as the natural extension of the "dictatorship of proletariat." Judges were supposed to follow, not to interpret, the will of the legislature not only and not primarily because of the hierarchical structure of the legal system, but because of authoritarian nature of political system. Accordingly, power to interpret laws was given to the legislature rather to the courts, and in cases of ambiguity judges were instructed to refer to the so-called authentic interpretation of the Parliament. Under Art. 74 of the 1946 constitution of the socialist Yugoslavia and Croatia as its federal unit, authentic interpretation was in competence of the Presidium of the People's Assembly. The same was provided for by Art. 170 of the Croatia's Constitution of 1963.
Another example is illustrated by Croatian Supreme Court's practice according to which the Supreme Court exercised its task of ensuring the uniform application of law by adopting legal positions taken from time to time by the General Convention of the Supreme Court. Such Convention comprises all judges of the Supreme Court and it can pass general positions related to uniform application of law and equality of citizens. Such general positions are regularly published and are binding on all judges of the Supreme Court directly, and indirectly througout the judicial system. For example in 1995 the Supreme Court adopted a general position stating that it is not bound by legal positions of the Constitutional Court taken in judicial review procedure.
In such circumstances, until recently, publication of judicial decisions in form of short sententiae was sporadic, and the annals of the Supreme Court were disclosing only what the Supreme Court wanted to be disclosed. Therefore, sententiae did not stand to any evidence of what was really happening within the judicial sphere, but a cosmetic presentation of an ideal world as seen by the Supreme Court.
Just to extrapolate a couple of examples. Damage sustained on a sport event organized by an employer, is not sustained in course of employment. Or: There is no causal link between damage of a motor vehicle sustained during transportation from the accident site and the accident for which the insurer is liable to compensate damages. Such statements are neither statements of law, nor of fact. They refer to a single case and contain guidance only for cases that are identical in fact, which of course, do not exist.
In the described form and extent sententiae were not suitable to sustain any of the above mentioned functions of judicial opinion: they served neither as persuasive authority, nor served as semantic, pluralistic, democratic or legitimizing tools.
The present
In normative sense the present in Croatia began in December 1990, by adoption of the first democratic Constitution. While it marked the watershed from the socialist-time social order in terms of political pluralism and democracy, it took a while until its effects in the judicial sphere started to take roots.
At the present situation is as follows. Constitutional Court is publishing its decisions regularly in paper and on the web. Decisions are published in full text, and electronic search is possible. Dissenting opinions are also published. However, only decisions on the merits are published without exception and some important dismissing decisions remained unpublished.
The Supreme court has significantly improved the system of publication. In addition to already existing publications of sententiae, a newly established electronic database contains many decisions of the Supreme Court and County Courts delivered since 1993 in full text. Decisions delivered after Jan. 1st 2004 are indexed. Sententiae are still published selectively. While still not comprehensive, the database represents a significant improvement and has for the first time opened such a significant number of decisions to the public.
However, certain features of the Croatian judicial process still adversely affect the full functionality of the publication system.
Judicial process normally begins before a Municipal Court, sometimes a County Court deciding as a court of first instance. Parties are heard on matters of fact and law, and the presiding judge summarizes and dictates their depositions and pleadings to a typist. As a matter of practice, statements of parties are not transcribed verbatim, nor they have an opportunity to dictate to a typist directly. At the end of each hearing parties are asked to sign the minutes of the hearing. After the hearing is adjourned the judge has time to draft a decision. As appellate courts do not have competence to establish facts of the case on their own, the minutes of the first instance proceedings are the principal source of relevant information for a court hearing an appeal. The same counts for cases reaching the Supreme Court which has authority to review decisions on grounds of error in law (substantive and procedural) only. As result, once the Supreme Court comes to publish its decision, it is decontextualised and void of extensive statements of facts. Typically, a published decision contains an extensive statement of relevant legal rules and reasoning of the (Supreme) court why those rules had to be applied to the facts of the case.
However, the recent improvements have still not significantly improved the situation in terms of functions of judicial opinion indicated in the table. This is witnessed by recent legislative amendments vesting interpretative powers to the Supreme Court, at the same time denying interpretative autonomy to the courts below. A recent amendment to the Judiciary Act introduced the solution according to which if 2 or more Courts of appeal adopt different decisions in the same legal and factual situation (...) and there is no recourse (legal remedy) to the Supreme Court (...) a party may ask the Supreme Court to assess whether uniform application of law or equality of citizens is jeopardized. The S.Ct. may decide the legal issue in meeting of a department (civil, criminal). The Supreme Court may also decide to stay (nationwide) all proceedings in which decision depends on its legal position, until the position is taken. Once adopted, the S.Ct. Legal position is binding on all courts below in all pending cases.
In this way interpretative autonomy of lower courts is replaced by abstract decision making by a non-judicial panel of judges.
The same phenomenon is also witnessed by the extensive practice of authentic interpretation by the Parliament and reluctance of the Constitutional Court to put an end to it.
Seemingly, having judicial decisions published is necessary but not a sufficient condition of their functionality within the legal system. Prevailing legal culture still insists on strict reading of rules, perceives the legal order as being objective, holds that there are correct and final answers to all legal questions, and is suspicious to judicial interpretation.
Towards a new legal culture?
Developments that may be triggered by free discourse are difficult to predict. Seemingly, communist/post-communist legal culture that survived the era of guided discourse is as legitimate as any other legal culture, for example, French. The mere fact of publication will change nothing unless the utility of having judicial reasoning available is not embraced by the members of the legal profession.
Hopefully, transparency will induce judges to invest more effort in legal drafting, members of the legal profession will increasingly discuss them and accept them as being fair and legitimate. They may eventually become persuasive, respected and relied to and citizens may develop expectations about certainty and rationality of law. By time, judges may develop professional self-awareness and dismiss interference of political branches of government. Seemingly, having judicial opinions exposed to public scrutiny can do better service then a stockpile of political commitments pledging the independence of the judiciary. Also, responsibility of legal education in this process of changing the legal culture is more then obvious.
Is there any argument that could substantiate this scenario? Possibly yes. One of the questions that occured to me while reading Prof. Lasser's book was which of the legal systems he analysed is more likely to become a point of reference in the globalized world? In that respect articulation and publication of judicial opinions is essential in terms of persuasive authority. Both, legal system of the United States and European Union can perform that task. French legal system can not. As Lasser clearly described, form of publication of judicial decisions in France completely obscures the lively legal debate that takes place behind the stage. This reminds of Fritz Scharpf's poker analogy, which says, speaking about competences, that a positive enumeration leaves the states in the position of trying to "beat something with nothing." It is exactly the same problem that French judges are facing. When one comes with an argument (something), a French court can respond only in "yes" or "no" terms. If one asks why so, the only answer a court can give is "because the law says so". This was exactly how Conseil d'Etat reacted in the famous Cohn Bendit case when it refused to recognize direct effect of unimplemented Directives. Why so? Because the Treaty says so! Persuasive? To conclude, formalistic recalcitrance and professional hipocrisy of some legal cultures does not provide for a comparative advantage in globalizing world.
Jean Monnet Chair, University of Zagreb
J. Dewey, Logical Method and Law, 10 Cornell Law Quarterly (1924) p. 17.
See p. 46
Iris Marion Young, Justice and the Politics of Difference, Princeton Universtiy Press, Princeton 1990
Sinia Rodin, Discourse and Authority in European and Post-Communist Legal Culture, Croatian Yearbook of European Law & Policy 1 [2005] 1, at p. 10-15
CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC, Application no. 57325/00, Judgment of 7 February 2006
The case was decided by Mr J.-P. Costa (France), President, Mr. A.B. Baka (Hungary), Mr. I. Cabral Barreto (Portugal), Mr. K. Jungwiert (Czech Republic), Mr. V. Butkevych (Ukraine) Ms. A. Mularoni (San Marino) and Ms. D. J o
i e n ( L i t h u a n i a ) , j u d g e C o s t a c o n c u r r i n g .
H a n s K e l s e n , I n t r o d u c t i o n t o t h e P r o b l e m s o f L e g a l T h e o r y , C l a r e n d o n P r e s s , O x f o r d , a t p . 5 4
I d . A t p . 5 6
E u g e n E h r l i c h , S o c i o l o g y o f L a w , 3 6 H a r v . L . R e v . ( 1 9 2 2 - 1 9 2 3 ) 1 3 4
I d . A t p p . 1 3 4 , 1 3 5
I n t h a t r e spect see: Sinia Rodin The Croatian Parliament in Transition From Authoritarian Past to European Future in Kiiver, Philipp (ed.), National and Regional Parliaments in the European Constitutional Order, Groningen : Europa Law Publishing, 2006
Rules of procedure of the Supreme Court, Art. 10, April 20, 1999, Su- 235-IV/1999
E.g. decision U-II-1265/2000, of Sept. 21, 2004 dismissing application for review of parliamentary rules of procedure
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