Book Announcement: The International Judge

Here's an announcement of and an excerpt from a book that should be of relevance for those interested in judicial decision making at international courts and tribunals: "The International Judge: An Introduction to the Men and Women Who Decide the World's Cases", by Daniel Terris, Cesare P.R. Romano and Leigh Swigart, University Press of New England / Oxford University Press 2007 (forthcoming). (via the Loyola Law School of Los Angeles Legal Studies Paper Series on SSRN).

This is the abstract:

This paper contains excerpts from the Introduction and Chapter 4 of the forthcoming book: Terris, D./Romano, C./Swigart, L., The International Judge: An Introduction to the Men and Women who Decide the World's Cases, University Press of New England ? Oxford University Press, 2007 (forthcoming).

International judges have settled border disputes, put political leaders behind bars for the crime of genocide, protected individual citizens from human rights violations by their own governments, and ruled on trade disputes involving billions of dollars. The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, is the first in-depth examination of the individuals who hear and decide cases in an increasingly wide array of international courts and tribunals operating in the world today.

Critics have attacked international judges as radicals determined to undermine the independence of sovereign countries and accountable to no one. The International Judge reveals a more complex picture of men and women who have strengthened international law with a careful regard both for legal and political considerations and whose performance is guided by a powerful collective sense of the importance of their work. The courts that they have shaped are both innovative and fragile, the product of complex interactions and, of necessity, experiments in both law and the process of building global institutions. International courts, reflecting both the strengths and the weaknesses of the judges themselves, are profoundly human endeavors.

The heart of our primary research was a series of interviews (32), ranging from one to three hours in length, with judges from most of the courts and tribunals. These interviews, conducted from 2004 to 2006, covered a wide variety of topics, including the judges' own backgrounds and career developments, the process by which they were nominated and elected or appointed to the court, the routine of their work, their relationships among colleagues, their thoughts on key cases decided by their courts, the ways judgments are crafted, the relationship between law and politics, and issues of character and ethics.

But whereas, according to French law, marriage is the union of a man and a woman...

The French Cour de cassation, in a decision handed down last tuesday (March 13th) rejected an appeal against a Court of Appeals decision annulling a decree of marriage between two men. Having decided that the Bordeaux public prosecutor had indeed been competent to attack the celebration of marriage conducted by the mayor of Bègles, the Cour de cassation deals with substantive complaints against the lower court's decision. These complaints were, principally, that (a) maintaining the requirement of a difference in sex in French law constituted an 'atteinte grave' (serious infringement) of the right to respect for private life of the applicants as guaranteed by article 8 of the European Convention on Human Rights, (b) constituted discrimination prohibited by article 14 read together with article 8 of the same Convention, (c) violated article 12 of the same Convention - guaranteeing the right to marry -, again read alone and in conjuction with the prohibition on discrimination of article 14, and (d) violated article 9 of the Charter of Fundamental Rights of the European Union. It is worthwhile to note that both provisions on marriage (art. 12 Convention and art. 9 Charter) stipulate that the right is to be exercised according to governing national laws.

The entire substantive decision of the Cour de cassation reads as follows (my translation):

But whereas, according to French law, marriage is the union of a man and a woman; and whereas this principle is not contradicted by any provision of the European Convention on Human Rights nor of the Charter of Fundamental Rights of the European Union, which does not have obligatory force in France; and whereas the plea is unfounded in all of its branches;

On these grounds:

Rejects the appeal

I'm not even going to try to offer substantive comments on the decision. Let me just point out two bits of comparative law info. (1) Anyone interested in how the Cour de cassation can 'get away' with such a short decision on such a highly controversial subject, can find lots of interesting suggestions in Mitchel Lasser's book Judicial Deliberations, mentioned before on this blog. (2) There's lots and lots of information on the Proz.com Translators' Workspace Website on how to translate French legal texts. For example, there is an entire debate on how to deal with 'attendu que ...; que ...; que ...' sentences, as found in all Cour de cassation decisions. Question: should you repeat the 'whereas' everytime? As you can see, I've chosen to do so, but you should bear in mind that this is - apparently - hugely controversial. Very thorough stuff.

Ruethers' Postscript to Die Unbegrenzte Auslegung (Limitless Interpretation): On Legal Method and Justice

The latest (6th) edition of Bernd Ruethers' classic book Die Unbegrenzte Auslegung ('Limitless Interpretation') contains a Postscript by the author that gives a fascinating picture of the difficulties the legal (academic) community of post-war Germany has had in dealing with the Nazi past. It is a picture painted by a scholar looking back - more than 35 years after originally writing his book and almost 60 years after the historical period he deals with - at his community and at his country.

Originally published in 1968 as a Habilitationsschrift, Die Unbegrenzte Auslegung was one of the very first detailed studies of jurisprudence and legal methodology during the Nazi-years. In addition, Ruethers was one of the first to argue against Radbruch's by then canonical assessment that it had been positivism that had rendered German judges powerless against Nazi-era injustices.

The 2005 edition of Die Unbegrenzte Auslegung reprints the book's original text, preserving it's value as an early assessment of Germany's recent legal past, written at a time when many of the authors discussed were still alive. In his new Postscript, Ruethers looks back at the genesis of his own study and at its reception (see also his Preface to the 6th edition). The concluding paragraphs of the Postscript, by contrast, are forward looking and discuss the book's - and the topic generally - continued importance.

The first sentence of the preface to the 1st edition (1968, reprinted in the new edition) is telling for the intellectual climate in which the book was written (my own translation, I'm afraid):

"The development of private law during National-Socialism has, twenty-three years after the collapse of 1945, not yet been comprehensively discussed or described. For this, several reasons may be given, but hardly any justification".

The 2005 Preface describes that same climate more generally in terms of a 'strategy of repression', a phrase that resonates well with Michael Stolleis' theme of 'Reluctance to Glance in the Mirror', discussed in his Prologue to Joerges/Singh Ghaleigh (eds.), Darker Legacies of Law in Europe (2003). Stolleis, Ruethers (in the Postscript) and Christian Joerges (in his paper Continuities and Discontinuities in German Legal Thought, see below) all give the same striking example of the longevity of this 'reluctance' - the kinder assessment - or 'strategy' - the harsher variety: the fact that the German Association of Public Law Teachers waited until the new Millenium to dedicate its Annual Meeting to the issue of Public Law under National-Socialism.

While the nazi-era as such was generally not discussed in German law faculties in the immediate post-war, a number of legal concepts and doctrines that had their origins in this period did form part of the standard curriculum. This meant, in Ruethers' words, that:

"foundational notions, doctrinal figures and instruments of interpretation that had been practiced during the Nazi era, were presented to post-war generations of students glowing in an aura of pure scientific quality (‘reiner Wissenschaftlichkeit’).

According to Ruethers, "academic discussion on Constitutional interpretation is", still in today's Germany, "generally conducted predominantly a-historically and a-politically". For an outsider, it must surely be impossible to evaluate such a claim fully. If (still) true, however, Ruethers' assessment is of great interest from a comparative studies point of view for the difference it sketches between Germany and the United States. It is hardly possible to open any book or read any article on Constitutional interpretation in the US without finding an extended discussion of both historical developments and political implications of the theory, art and practice of constitutional adjudication.

The German academy's initial 'choice' to ignore rather than to study in detail law under the Nazis may have had another consequence: the persistence of faulty conclusions about the role of lawyers and legal methodology during that time.

Ruethers writes:

"A realistic presentation of the jurisprudential theories and practices of the Nazi-state disproves the legend that the official injustices of the Nazi era should be traced primarily to the legal positivism (‘Gesetzespositivismus’) said to have been prevalent at the time. The perversion of the legal order was carried out above anything with anti-positivistic arguments and instruments".

This view - the position he originally defended in 1968 - is now widely accepted, at least to the extent that, even for those who do not believe in the negative impact of anti-positivistic theories and practices, positivism itself certainly was not a major culprit.

When looking back on what went wrong under fascism, Ruethers' Postscript makes a strict distinction between 'legal methodology' ('Rechtsmethoden') on the one hand, and 'legal theory and philosophy' on the other. For Ruethers, legal methodology is 'value neutral'. Legal theory and philosophy, by contrast, should be firmly grounded in some form of 'substantive value order' ('materielen Wertordnung'). In fact; Ruethers' concluding remarks for the future concern precisely the importance of a firm normative grounding for legal theory; a worry voiced against the background of his perception that modern (German?) legal theory is insufficiently conscious of its own moorings.

Ruethers' distinction between 'legal methodology' on the one hand, and 'legal theory and philosophy' on the other and his insistence on the value-neutrality of method are intriguing. Both points however cannot ultimately, I would argue, be sustained.

The debate over the substantive implications of legal method is one of the most contested in all of legal literature. I will just make three very brief points:

(1)It is true that more recent scholarship on law under fascism (especially professor Grosswald Curran's paper Fear of Formalism) has argued that legal historians have overestimated the causal connection between choices for certain methods and substantive injustices. This important argument goes right against the dominant trend for legal scholars to blame methodology (rather than their brethren, colleagues?) for substantive evils. At the same time, judges of many jurisdictions continue to debate issues of method vigorously - even while often agreeing on substantive outcomes. Should these persistent debates not count as a prima facie indication that something substantive must be at stake in methodological debates?

(2)Judicial activity obviously takes place in an institutional and political context. Ruethers' Postscript contains an important insight on this point where he points out that the fascist dictatorship in Germany presented the peculiar situation of a "substantive conversion/transformation of a legal order in a situation of a largely reticent legislature". This context may be crucially important when evaluating the merits or faults of a method such as positivism. In the early days of a new ideological order that has a largely inactive legislature, it would seem likely that a positivistic stance on the part of judges will preserve at least some of the values of the previous legal order (Guido Calabresi made this argument for Italy in his fascinating article Two Functions of Formalism). As the new regime establishes itself and more laws are enacted, positivism will allow more and more of the new ideology to take effect.

(Incidentally: A 1992 debate between Kathleen Sullivan and Gerald Neuman on judicial 'balancing' in the US makes a comparable point; judicial flexibility in a conservative-dominated era is likely to please liberals (witness the Warren Court in the US), but the inverse may very well also be true!)

(3)Finally, the method/theory separation seems difficult to maintain generally. Comparative law insights underline this point as different legal cultures may draw the line between method and theory at different points. A theory that is merely a theory of interpretaton in one legal order may very well be a substantive theory of 'the Constitution' or of 'Constitutional law' generally in another. Think by way of example of the debate on Originalism in the United States as compared to the absence of anything resembling such discussions more or less anywhere else. In the abstract; I don't think it is possible to meaningfully separate originalism as a (neutral) method of interpretation and as a (substantive) legal theory or philosophy.

Ruethers' Postscript concludes by looking towards the future. For the author, the danger of Unbegrenzte Auslegung is clearly not confined to the exceptional situation of totalitarian regimes. For him, looking after legal methodology is a 'Dauerafgabe'; a task to be undertaken continuously. In this, Ruethers must surely be right.

Additional Sources:

Christian Joerges, Constinuities and Discontinuities in German Legal Thought, Law & Critique 2003 (requires access)

Thomas Mertens, But was it Law? (Review of Joerges/Singh Ghaleigh, Darker Legacies of Law in Europe), German Law Journal

Markus Dirk Huber, Review of Michael Stolleis, The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago: University of Chicago Press, 1998), Law & History Review