Vol. 25 No. 2 (February 2015) pp. 27-30
JUDICIAL DECISION-MAKING IN A GLOBALISED WORLD: A COMPARATIVE ANALYSIS OF THE CHANGING PRACTICES OF WESTERN HIGHEST COURTS by Elaine Mak. Oxford, UK and Portland, OR: Hart Publishing. 2013. 290 pp. $90.00. ISBN: 978-1849465540
Reviewed by Martin M. Shapiro (emeritus), University of California Berkeley Law.
For a number of reasons, the title of this book is somewhat misleading. First of all, it might well have been something like: THE GLOBALIZATION OF LAW: REFERENCES TO FOREIGN AND TRANSITIONAL LEGAL MATERIALS IN THE WORK OF DOMESTIC COURTS, for that is what the book is really about. It is a very meticulous and welcome, but specialized, addition to the globalization of law literature pioneered by the INDIANA JOURNAL OF GLOBAL LEGAL STUDIES.
Secondly, the use of the “judicial decision-making” wording in the title is likely to be particularly misleading for political scientists specializing in the study of law and courts. In the American political science community that wording is particularly associated with the legal realism, judicial behavior, political jurisprudence, law and society intellectual tradition. This book does show a movement away from the traditional European legal scholarship that deals exclusively with statutory and constitutional texts and published judicial decisions and toward more American practices. It supplements traditional study with some statistical analysis where the very limited data will support it and extensive interviewing of judges. There is, however, no politics in this book. The law is presented as an autonomous discourse pursued by judges employing a craftsmanship of disinterested legal reasoning.
For a very long time lawyers commenting on the work of judges have been able to speak of “judicial interpretation” of statutory and constitutional texts. Most American lawyer scholars and political scientists have now become comfortable speaking of “judicial policy making” and some even of “judicial law making.” European lawyers writing about courts still are very uncomfortable with “judicial law making” wording. Indeed I have recently had the experiences of having to remove my contribution to a European symposium because my use of that expression so disturbed the German law professor in charge of the volume. I may have missed it, but I do not believe there is a single reference to “judicial law making” in this volume, although there are brief accounts of “judicial discretion.”
The absence of that wording is particularly paradoxical for this volume. There are many instances in which judges cite a foreign statute or constitution or treaty that, in their particular nation-state, has been officially domesticated into internal law. “Domestication” is a practice in which a statute or constitutional text of a given country provides that a particular foreign or international law, or particular or all treaties ratified by that country, shall be considered part of the domestic law of that country. Where such domestication has occurred, national judges who follow the foreign or international or treaty law may plausibly claim to have been interpreting law made by others, by the combination of legislators, constitution framers and/or treaty ratifiers who chose explicitly to inject the outside legal text into their national law. And, indeed, some of the judicial activity described in this book is of that sort. A substantial part of judicial work described, [*27] however, consists of the introduction of non-domesticated foreign statutory, constitutional, treaty or judicial opinion content into their own domestic law by national judges. That work cannot be anything other than judicial law making because it is judicial declaration of law that becomes legally binding within the particular state solely by action of domestic judges. For if it hasn’t been domesticated by national statute or constitution, it can hardly become national law because a national judge has proclaimed it. American political scientists can easily translate much of this book into “judicial law making” language.
A second paradox involves the author’s quite admirable interviewing work. In general, if one wants to know what’s really going on in any part of politics, it is wise to get beyond official, legally mandated, published rules, practices and organization charts and talk to the actual political actors. And so Professor Mak talks to the judges. Among all government officials, however, judges are among the most likely to lie about what they do. It is vital to the institutional success of courts that they claim to resolve the particular cases before them by the neutral, independent application of pre-existing legal rules, that they deny exercising discretion. Yet in one case in ten or a hundred or a thousand there is no pre-existing legal rule or only an ambiguous one. It is in those legal instances that judicial discretion, and thus judicial law making, resides and cannot be judicially avoided. For judges, unlike professors, are not allowed to throw up their hands and say: “I don’t know. It could go either way.” They must pretend that there is a right legal answer, and they have found it.
This institutional need to lie is particularly strong when judges in civil law, as opposed to common law, countries wish to make law by transposing foreign or transnational case law into domestic law. For in many civil law countries judges are officially forbidden to follow previous cases but must instead always refer back directly to the statutory or constitutional text and make their own independent “interpretation” of that text--in short, no stare-decisis. So, when asked about their invocation of foreign or trans-national legal materials, civil law judges are bound to say that they may be persuaded by the “reasoning” found in foreign or trans-national judicial opinions and so come to the same conclusions that they did, but they will not say they adopted outside case law any more than they will say that they have simply followed earlier domestic case decisions. And that is exactly what they say and don’t say to Professor Mak. Interviewing judges about what they do, even more than interviewing others in government, is unlikely to yield highly reliable results.
More generally, however, it must be emphasized that Professor Mak does not fall into the old and false position of contrasting the case law in common law countries and its absence in civil law countries. She does the best she can to recognize case law in civil law countries. But American readers just coming to comparative law, or who first came to it when the old clichés about common versus civil law were universally taught, must be further cautioned not to accept them even though they are still officially proclaimed and still often appear in various texts, encyclopedias and case books.
If the title of this book is a bit misleading, its pedigree is very revealing. It began as a doctoral dissertation in law by a now Associate Professor of Jurisprudence at the Erasmus University, Rotterdam. It is very much in a European tradition of academic legal writing, somewhat abstract, very general and quasi-official, stating THE [*28] LAW as it ought to be rather than concerning itself with what is really going on. Nevertheless, in meticulously tracking down the prevalence of references to foreign and transitional law in the work of national judges, Professor Mak has pointed to something new in the legal world.
Based on the self-defense interview responses of the judges, Mak can say that they refer to foreign materials because the reasoning in them is persuasive, not because they are citing them as authorities. Thus the fiction is preserved that civil law judges do not follow previous cases as authorities, but exclusively reason directly from statutory or constitutional texts. If, however, only reasoning counted, and there was no global case law, why wouldn’t the lawyers arguing to the judges simply present “reasoning” rather than accompanying, as Mak rightly reports they do, so many of their proffers of reasoning with citations of foreign and transnational cases that employ those particular reasonings.
Having said all this, the virtues of this book are many:
(1) This book is part of a growing stream of books and articles on comparative law and courts that signal a real sea change in American political science, as does the collection of book reviews in which this one is appearing. Not so long ago American political scientists specializing in law and courts looked only at American courts, typically only at the U.S. Supreme Court. Political scientists in “comparative politics” looked at everything foreign except courts which they left to law and courts people who actually did not look at foreign courts. So no one looked at foreign courts. Today both the law and courts subfield and the comparative politics subfield have people looking at courts comparatively. And wonder of wonders some of them are actually including U.S. courts in the set of courts to be compared. Previously comparativists looked only at non-American phenomena, which was the monopoly of Americanists, and so could not compare U.S. and foreign courts even if they could bring themselves to look at courts at all. This book, although written by a non-American, by actually comparing courts and by including U.S. courts among those to be compared, contributes mightily to a welcome change in law and court studies.
(2) Professor Mak has done an enormous amount of work tracking opinion content, interviewing and doing statistical analysis. A vital first step in long term social science analysis is establishing the formal institutional structures and orthodox, stated practices of a realm of politics before going on to its more hidden aspects. This book does a lot of that first step for us.
(3) For various reasons European comparative law scholarship conducted by lawyer academics, and that was about the only comparative law scholarship there was, concentrated almost exclusively on private law. There is now an active European comparative public law movement centered on the EUROPEAN REVIEW OF PUBLIC LAW. This book contributes importantly to that movement.
(4) Professor Mak devotes a good deal of attention to judicial “networks.” Here she goes beyond conventional, “internal” legal scholarship into an [*29] approach widely used in U.S. law and social science circles. Although the “network” and, more basically, the communications and organization theory approaches have been used most prominently by international relations students dealing with NGOs, such approaches also came into use in the political science study of courts some time ago (Shapiro 1970, Shapiro 1972). Precisely because Mak is concerned with inter-court influences that are not formal or hierarchical, as are for instance the relations between trial and appeals courts within a particular nation-state, she is naturally driven to, and makes an important contribution to, network and allied approaches. This aspect of her work does move her well beyond the formal and quasi-official. Or, it might be argued, at least in the European context of the EU and the European Convention on Human Rights and other federal or quasi-federal contexts, such networks have become more or less formal and official.
(5) Particularly for American law and courts political scientists seeking to move outward, the first sixty pages or so of this volume provide an excellent orientation to European courts.
(6) This book contributes importantly to what I hope will be a growing field of “trans-Atlantic” studies. All comparativists know that if you can’t hold some things constant, chaos often occurs. Global comparisons sit on the edge of chaos because there are so many cultures, government arrangements, geographies, economies and on and on. It is hard to find anything to hold constant globally except things so general as to be of little analytical help. Trans-Atlantic studies are easier, providing a rather neat balance of constants and differences. The development of a European federalism, the European Union, provides a particularly neat opportunity for comparison with U.S. and Canadian federalisms.
A grain of salt, and maybe a bit more, is called for, but digesting this book will be good for you if you have any interest in the comparative study of law and courts.
INDIAN JOURNAL OF GLOBAL LEGAL STUDIES.
EUROPEAN JOURNAL OF PUBLIC LAW.
Shapiro, Martin .1970. “Decentralized Decision-Making in the Law of Torts.” in S. Sidney Ulmer, ed., POLITICAL DECISION-MAKING. New York: Van Nordstrand.
Shapiro, Martin .1972. “Toward a Theory of Stare Decisis.” JOURNAL OF LEGAL STUDIES Vol. 1, pp 125-42.
© Copyright 2014 by the author, Martin M. Shapiro.