Against the Idea of “Americanization” of European Judicature in the Context of the New Era of Judicial Globalization
| Autor | Oreste Pollicino |
| Cargo | Researcher in Comparative Public Law, Bocconi University, Milan |
| Páginas | 407-440 |
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The classical topic of transforming the notion of the frame of state (i.e. the vertical relationship between governors and citizens) seems able to affect the different (but related) issue of the institutional balance, in a horizontal perspective, within the constitutional powers of the State (i.e. legislative, executive and judiciary branches).
In particular, it is possible to see in the change from the nineteenth century liberal State to the present post-modern globalized governance passing through the affirmation of the post war welfare societies, a corresponding gradual strengthening of the role of judicial power.
It is well known that the “minimal” State of the nineteenth century was characterised, with regard to the horizontal division of powers, by the absolute predominance of the Parliament over the executive and the judiciary branches, which were considered as ancillary powers of the popular sovereignty’s representative body1. This Parliament hegemony found its expression, in relation to the sources of law hierarchy, in the absolute predominance of thePage 408 “legal rule” which, according to a pure “rule of law” logic, was prevailing also over the constitutional (flexible) documents.
With specific regard to judicial power, it considered, in the very lucky Montesquieu metaphor2, not more than the “bouche de la loi”. It is well known that this expression tended to accentuate the element of pure and mechanical logic in judicial decision making, while neglecting, or concealing, the voluntary and discretionary element of choice. It is for this main reason that in the historical period under scrutiny, judicial power could be defined, only apparently paradoxically, as a “not power”, because of the circumstance that it was not expected to express its own will but only to apply clear and precise rules defined by the legislative power.
In the twentieth century, with the affirmation of the social state, it is widely recognized that the executive power has taken the place of the Parliament in the leading role of modern welfare societies.
The welfare state, in fact, by nature, cannot simply exercise traditional repressive functions or restrict itself to guarantee negative liberties but it must, on the contrary, ensure an active and promotional protection to the citizens. Such a policy involves by definition planning for future developments and affirming broadly formulated social aims and principles, leaving the courts with the task of concretising, in real life cases, the meaning, extension and limits of these aims and principles.
It is evident that this kind of legislation has encouraged the creativity of judges and the freedom of choice3 and the significant growth of state intervention inPage 409 fields previously left to private self regulation has led to a corresponding increase in judicial activity4.
More precisely, in the social State, through a process of “judicialization” of politics, the distance between institutions and citizens has become narrower and the occasions of exchange of views between the same actors more frequent. The role of the Court, in this context, can be characterized as a privileged meeting place5.
Concluding this very brief overview, it seems evident that in the actual era of legal and economical globalization, the classical constitutional governance is changing those characteristics which marked its development process in previous centuries.
In particular it seems to be in a definitive decline that historical constellation characterised for the contextual presence, within the same national borders, of the State, sovereignty and economy triangle6.
The post modern constitutionalism is rather marked by a process of sovereignty’s fragmentation followed by a parallel process of its re-articulation within a multilevel and polycentric order.
In this scenario, it is decisive to find out the right and quickest interconnection routes in order to connect the different constitutional centres which frame, at national, supranational and international level, the new polycentric global order.
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It is a common opinion that judicial decisions’ multilevel network is the best interconnection route7. The “road to juristocracy” consequently represents one of the main trends of the post-modern constitutionalism in the judicial globalisation era8.
In other (more convincing) words, ‘judicial power has moved from being the “weak ring” of the chain to become the strong one’9.
Judge-made law seems to be in a better position than legislative or administrative acts, in terms of flexibility and its pragmatic approach, to face the challenge of legal systems as they become increasingly more interdependent and are in a constant and unforeseen transformation.
To put it blandly: the global governance seems to prefer the language of the “law in action” than the ink of the “law in the books”10.
If it is not possible to disagree with the evolving tendencies emerging in the academic debate very briefly summarised above, it is not possible however, at the same time, to deny that there is still something missing in the current debate.
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The missing piece seems to be an analysis effort in order to isolate, in the era of judicial globalisation11, the European judiciary DNA.
To put it simply, when the discussion about the global expansion of judicial power comes across the European Court of Justice’s case law, it is taken as example in order to show how the common law wind of USA Supreme Court is now blowing also on Luxemburg12. In other words, through the emerging role of the Judicature in the “old continent”, it would be progressively developing a gradual “americanization” of European constitutional law13.
Against this view it is worth emphasizing that the analysis of the European experience related to our topic constitutes a interesting field of research not only because it represents a meaningful expression of judicial globalization trend, but also (and perhaps mainly) because, within this scenario, it seems able to constitute a specific model of expansion of the judicial power.
In particular, the specificity of European judicature finds its roots in substantial and structural reasons, the first connected with the system of legal values proper of the European dimension, the second related to the specific DNA characterising the European legal order.
With regard to the substantial reasons, if it is true that the Luxembourg Court has created a constitutional doctrine by a common law method14, it must be clearly underlined that the above named doctrine remains purely European. This means that through this methodology and by referring explicitly and implicitly to the common constitutional traditions of the member States, the ECJPage 412 identified an exclusive system of legal values which constitutes an effective European constitutional heritage.
In other words and for those who like rhetoric: an independent judicial island in the ocean of the judicial globalisation.
In relation to the structural reasons, two are the elements which seem to make unique the architecture of the European legal order: the principle of evolving dynamism and the principle of constitutional tolerance.
The first element15 is characterised by the process of slow but constant transformation of the European humus, which characterised, at the beginning, in 1957, by an evident market oriented goal, has incorporated, during the years, a social and a political dimension.
This transformation process has been driven by the courageous activism of the Court of Justice, which, in an often embarrassing inertia of the European community legislative power, has taken on the “job of constitutionalising” the EC Treaty.
As, in a well known piece, Stein wrote: ‘tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with the benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe’16.
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It would have been inconceivable to bring about such a radical transformation without applying a degree of judicial creativity.
Of course, every conquest has its price, and the ECJ has had to pay the price of no longer being subject to ‘benign neglect' but becoming, on the contrary, the target of harsh accusations17 and the beneficiary of valiant defences18 for the way in which it has interpreted its judicial function.
More precisely the European judges had the role, especially in the early years, to fill up the void left by the...
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