17 February 2006

Book Review: Koopmans, 'Courts and Political Institutions' (by Felix Ronkes Agerbeek)

Felix Ronkes Agerbeek sent this Book Review of former ECJ Judge Koopmans' book 'Courts and Political Institutions - A Comparative View' (Cambridge 2003), to be published shortly in the Common Market Law Review. Many thanks for that!

With his characteristic enthusiasm Tim Koopmans, former Judge at the European Court of Justice, mentions in the foreword of Courts and Political Institutions that ‘it has been a great pleasure to compose this book’. The relatively compact volume offers a comparative view of the legal relations between political institutions and the courts in several European countries and the United States. It is difficult to think of anyone who would be in a better position than Koopmans – who was also professor of constitutional law at Leyden University – to provide just such a perspective. The book draws from many of Koopmans’ earlier writings and clearly is a product of an enduring passion for comparative constitutional law. The result is a work that treats with remarkable lucidity the colossal topic of ‘judges and politics’.

Koopmans’ comparative study concentrates on the constitutional systems of Germany, France, the United Kingdom, the United States and the Netherlands. Instead of analysing each country separately, the study proceeds along thematic lines. It is divided into ten chapters with titles such as ‘The growth of judicial power’, ‘Techniques of judicial protection’ and ‘Courts and individual rights’. Although some chapters are further subdivided into countries, the comparative material – which includes historical contextualization – is generally woven into the discussion of the different themes. For example, under the heading ‘The area of discretion’ Koopmans refers to the theory of ‘Ermessen’ (Germany), the Barel-decision of the Conseil d’Etat (France), the decision of the Supreme Court in Overton Park (United States), and Wednesbury unreasonableness (United Kingdom). This approach is a great strength of the book. Surprisingly perhaps, Koopmans only mentions the European courts in Strasbourg and Luxembourg on occasion. The European Court of Justice, for instance, is absent from the section on the influence of a federal form of government on the respective powers of courts and political institutions (Chapter 7.2). The discussion in that section of Katzenbach v. McClung raises issues that have their parallels in EC law (think of the Opinion of AG Jacobs in Konstantinidis).

The book deals with numerous subjects near and dear to constitutional lawyers: judicial activism, the counter-majoritarian difficulty, the separation of church and state, the sovereignty of parliament, the political question doctrine – to mention only a few. Of course, a work that is so wide in scope must inevitably compromise detail. One should not expect a comparative analysis of the same depth – and conducted with the same meticulousness – as Lenaerts’ Le juge et la constitution (Bruylant 1988). The reader Koopmans has in mind is ‘the senior student of law, history or political science … with a cosmopolitan view of life in society’, and he engages this reader through historical anecdotes and great story-telling, rather than through academic exactitude.

Koopmans distinguishes between judicial and political activities. He acknowledges that this distinction is inherently problematic. Yet, he generally avoids the normative complexities by applying an institutional standard, which links judicial activities to courts and political activities to the legislature and the executive. Therefore, the general conclusion that the boundary between law and politics is drawn differently in different countries simply confirms the divergences between various constitutional systems as to the distribution of powers among the institutions. At the same time, Koopmans makes more than a few normative statements. For instance, he emphasises that it is important for courts to respect ‘the sphere of action that is the proper sphere of politics’ and that there may be problems that are ‘too large for the courts’. He also states that the growing influence of judicial decisions on matters of public law ‘compels us to rethink the constitutional relationship between the courts and the legislative and executive bodies’. This begs the questions of what Koopmans believes to be the ‘proper sphere of politics’ or the best lines along which to rethink the relationship between the courts and the political institutions. In fact, this may be the only respect in which Courts and Political Institutions might be considered slightly disappointing: the absence of a general view from someone with Koopmans’ knowledge and experience on the constitutional role of the judiciary. When he writes about the advantages and disadvantages of judicial decision-making, his professional background clearly comes to the fore: ‘From force of habit, judges take individualistic positions. They see social problems in terms of the rights of individuals rather than of the organization of society … To that extent the judiciary has some kind of professional bias … A bias may also be present when values are in issue which have a natural appeal to lawyers, for example, procedural guarantees…’. These are valuable observations, but ultimately the book does not defend a thesis, in contrast to other comparative studies such as Maduro’s We the Court (Hart 1998) and Lasser’s Judicial Deliberations (Oxford University Press 2004), or to Sunstein’s study of ‘judicial minimalism’ at the US Supreme Court, One Case At A Time (Harvard University Press 1991).

Nonetheless, Courts and Political Institutions deserves to be widely read. Koopmans is a fervent comparatist and his book is, above all, a plea for comparative constitutional studies as a means to gain more understanding about one’s own politico-legal culture and its constitutional choices. In this respect, the book certainly manages to convince. It effortlessly guides the reader through a wide range of classic, complex issues of constitutional law, while quoting a variety of sources including Marbury and Montesquieu, as well as Blaise Pascal and Oscar Wilde. It is a great pleasure to read this book.

T. Koopmans, Courts and Political Institutions – A Comparative View, Cambridge 2003, ISBN 0-521-53399-6, 299 pp.

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