Another Dutch PhD with a strong comparative component, defended earlier today - and cum laude! - at Rotterdam's Erasmus University by Elaine Mak. The thesis' English title is 'A Balanced Judiciary; the role of checks and balances and of new public management principles with regard to the judicial organisation in the Netherlands, France and Germany'. The book, published (in Dutch) with Wolf Legal Publishers, is a highly interesting study of the many ways in which 'classic' rule of law and separation of powers principles and 'new' ideas on efficiency, transparancy and - in general - 'quality', can, and do, interact. In its selection of materials and ambit of research questions, the book goes far beyond many traditional comparative studies of adjudication. With Elaine's very gracious permission, here is the English language summary from the book.
The exchange of arguments in debates concerning the modernisation of the judicial organisation in the legal systems of the Netherlands, France and Germany is defined by a mixture of two types of arguments. Principles for the regulation of power in the State, which concern the legitimacy of the judicial organisation from the perspective of the classic conception of “checks and balances”, have to be balanced with principles which concern the realisation of an “optimally transparent, effective and efficient” State organisation, and which underlie the recently developed “new public management” perspective on the legitimacy of the social order of “liberal democracies”. The different backgrounds of arguments based on the two types of principles and their implications for the judicial organisation, however, have not been sufficiently acknowledged in the debates in the Netherlands, in France and in Germany. A first step in the clarification of the frame of reference for the debates has been made, in this thesis, by observing the rise of “new public management” principles against the background of the evolution of the conceptions of “checks and balances” and “constitutionalisation” in the legal systems of the Netherlands, France and Germany.
In Chapter 1, the interaction between different types of reference norms for the judicial organisation in the “liberal democracy” has been analysed in the light of the two relevant paradigms for the judicial organisation. A first series of reference norms is expressed in the classic paradigm of “checks and balances”, in which “independence” and “impartiality” feature as basic norms for the judicial organisation. A second series of reference norms has its origins in the “new public management” paradigm, in which the norms of “transparency”, “effectiveness” and “efficiency” of the State organisation take a place next to the classic norms of “checks and balances”. The relations between the paradigms have not yet been the subject of in depth research. It has been established that the “new public management” paradigm has come in and encapsulated the classic “checks and balances” paradigm for the discussion concerning the judicial organisation. The classic “checks and balances” reference norms have retained a place in this new paradigm. However, in the “legal” frame of reference, which is formed by “principles” for the judicial organisation, these reference norms are confronted with a new group of reference norms which have obtained the status of “principles” for the judicial organisation: the “new public management” principles or “quality requirements” for the judicial organisation. In many cases, the types of reference norms seem to complete or to reinforce each other: “independent” and “impartial” dispute resolution through separation of powers and “territorial” distribution of jurisdiction is in harmony with the principles which require a “transparent”, “effective” and “efficient” judicial organisation. In some cases, however, the types of reference norms seem to enter into conflict: new measures concerning the realisation of a more “transparent”, “effective” and “efficient” judicial organisation can cause tensions with regard to the classic principles of “checks and balances”, for example in the case of the realisation of a higher degree of “specialisation” in the judicial organisation. A possibility for balancing the two types of reference norms in the reform debates is brought about through the process of “constitutionalisation”, in the “new public management” paradigm, making the reference norms compatible by defining them as “principles”. The participants in the debates who prefer the optimisation of classic “checks and balances” principles will have to accept that the concretisation of these principles cannot be realised, in the new paradigm, otherwise than through balancing them with “new public management” principles. The participants who prefer the optimisation of “new public management” principles will have to take into account, when concretising these principles, that the “noyau dur” of classic principles of “checks and balances” remains guaranteed. The redefinition and the maximisation of the legitimacy of the judicial organisation which can thus be accomplished, in the legal systems selected for research, are expressed in the “formal Constitution”.
In Chapter 2, this constitutional arrangement of principles for the judicial organisation has been analysed for the legal systems of the Netherlands, France and Germany. Through the consecration in a “Constitution”, “principles” can obtain formal constitutional status. They therewith serve as reference norms for the rule makers for the judicial organisation in the search for solutions for the judicial organisation. The meaning of the constitutional provisions is established through the interpretation of these provisions by the legislator, the executive power and the judge. Several factors have been construed as having implications for the evolution of the formal constitutional frameworks for the judicial organisation in the Netherlands, France and Germany: the “rigidity” of the Constitution; the role of “constitutional review” in a legal system; the role of international law in a legal system. These factors have implications for the modification, the protection and the harmonisation of the constitutional domain of the production of norms concerning the judicial organisation. The legislator’s withdrawal from the domain of normative production, together with the growth of judicial review in the context of the developments of constitutionalisation and internationalisation, has given an impulse to the judge’s role in the procedure of concretisation of principles for the judicial organisation in the positive constitutional law.
The analytical framework for determining the effect of classic “checks and balances” principles and “new public management” principles for the judicial organisation in the Netherlands, in France and in Germany has been marked out in Chapter 3, and it has been translated into an explanatory model with regard to the choice of solutions for the judicial organisation in each of these legal systems. The weight given to the different types of principles for the judicial organisation in the formal constitutional framework of “legal” solutions for the judicial organisation, as well as the evolution of the balance of principles in the underlying material constitutional framework of “legitimate” solutions for the judicial organisation, are dependent on the “rigidity” or “flexibility” of the formal constitutional framework. This “rigidity” or “flexibility” determines to what extent the options for the producers of norms for the judicial organisation concerning the choice of a specific solution are limited by the constitutional balance of formalised principles. The degree of “rigidity” or “flexibility” of the constitutional framework in a legal system is the result of the interaction of the factors distinguished in Chapter 2, which influence the constitutional classification of principles. The analysis in Chapter 3 shows that these factors do not contribute to the same extent to the “rigidity” or “flexibility” of the constitutional framework. The content and the detail of constitutional provisions as well as the possibility of constitutional revision are the most important factors concerning the “rigidity” or “flexibility” of the constitutional framework at the moment of the introduction of the Constitution. In the evolution of legal systems, however, mechanisms of judicial review form more important indications than these two factors for the determination of the place of a legal system on the continuum of “rigidity” and “flexibility” of the constitutional framework. Keeping in mind these observations, the thesis has considered the solutions to dilemmas of judicial organisations in the modern “liberal democracies” of the Netherlands, France and Germany.
Chapter 4 presents a first thematic analysis of solutions for the legitimacy of the judicial organisation, a legitimacy which has to be found in a balance of the principles of “autonomy” and “responsiveness” of the constitutional law regarding the judicial organisation. The main question to be dealt with concerned, first, the demarcation of the judicial activity in the public domain, and, secondly, the demarcation of the judicial activity vis-à-vis the private domain. In other words, it had to be established what role is played by the judicial power vis-à-vis the political powers in the State, and what role is played by judicial dispute resolution vis-à-vis methods of alternative dispute resolution. The research method consisted of a comparative analysis of principles for the judicial organisation in the “liberal democracy” in the historical context and in the present-day context of the three legal systems which were selected for the research. The aim was to determine to what extent the implicating factors on the constitutional framework are decisive for the expression of new notions concerning the judicial organisation in positive law norms regarding this subject. The analysis has revealed a number of principles which reflect the constitutional core of the judicial activity limiting the choice of solutions for the judicial organisation based on the “autonomy” or the “responsiveness” of the law. The constitutional aspects regarding the demarcation of the “judicial domain” can be classified in two groups. In the public domain of the relations between the State powers, the discourse originating in the classic “checks and balances” paradigm links the legitimacy of the judicial power to the promise of political neutrality which forms the essence of judicial “independence”. The discourse originating in the “new public management” paradigm links the legitimacy of the judicial power to the acceptance of the responsibility which is related to the qualification of the judicial activity as an element of the public service provided by the State. Complementing and reinforcing effects of principles come to light in constructions concerning the guarantee of responsibility of the judicial power for the exercise of its function. A collision of principles occurs when “new public management” principles come into conflict with the principle of political neutrality of the judicial activity. The limits set by the classic “checks and balances” paradigm concern the establishment of courts by law; the guarantees regarding the legal status of judges; and the minimum guarantees for a “fair trial”. In the demarcation of the judicial activity vis-à-vis the extra-judicial domain of dispute resolution, the legitimacy based on classic “checks and balances” principles is linked to the status of the judicial activity as a public and regulated method of dispute resolution, which aims at the legal protection of citizens. The “new public management” paradigm offers a basis for the legitimacy of the judicial organisation by accentuating the specific guarantees of judicial dispute resolution compared to alternative methods of dispute resolution. Dispute resolution before a court is thus presented as a “reasonable option” on the spectrum of methods of dispute resolution. Complementing and reinforcing effects of principles are revealed in the positioning of the judicial activity as a “transparent”, “effective” and “efficient” method of dispute resolution which at the same time offers the guarantees of a “fair trial”. The possibilities of concretisation of “new public management” principles on the level of the organisation of dispute resolution find a limitation in the guarantees of classic “checks and balances”, which are especially important in the light of the public character of State organised dispute resolution.
The research presented in Chapter 5 builds further on the analysis in Chapter 4. Not only is it possible to distinguish a constitutional basis for the judicial activity, the organisational structure for the exercise of that function in the “liberal democracy” is also an object of constitutional norms. In the debates which have been conducted in recent years in the legal systems of the Netherlands, France and Germany, historically developed solutions for the “management” of the courts, based explicitly on classic “checks and balances” principles, have been re-evaluated in the context of “new public management” principles. The historically developed practice by which a large number of competences concerning the management of the courts was allocated to the legislator and above all to the executive power has been re-evaluated in favour of the possibility of judicial “self-management”. The organisation of the management of the courts is however not limited to the distribution of competences over organs which are external to the judiciary and over the judiciary itself. The concretisation of this distribution of competences is at least as important with regard to the guarantee of the constitutional and social legitimacy of the judicial organisation. Aspects of the possible structures for the management of the courts, especially the choice of a “flat” or “hierarchical” structure and the possible establishment of a Council for the judiciary as an intermediary between the courts and the executive power, have been evaluated in the light of principles originating in the two paradigms for the judicial organisation. The analysis of the management structure for the judicial organisation in the Netherlands, in France and in Germany has revealed that the confrontation of classic “checks and balances” principles and “new public management” principles in some cases produces complementing or reinforcing effects concerning the legitimacy of the judicial organisation, while in other cases this confrontation results in a collision of principles. On the institutional level of the State, the hierarchisation turns the judicial power into an organ holding a strong position vis-à-vis the executive power and holding an inherent responsibility. On the level of the dispute resolution in individual cases, however, the recent debates in which “bureaucratic” aspects have been put to the fore cause a preoccupation with the principles of “effectiveness” and “efficiency” in spite of the judge’s commitment with regard to the act of settling disputes. The judge is confronted with a large number of actors who try to influence the exercise of the judicial activity. These influences entail positive effects – the promotion of the uniform application of the law is beneficial to the unity of the law, to the equality before the law and to the legal certainty, and in that way to the “effectiveness” and “efficiency” of the judicial system – but they form a limitation of the judge’s individual autonomy. The search for a balance of principles for the judicial organisation takes place in the interaction between constitutional norms, legislative norms and norms of professional conduct. Constitutional norms regarding the management of the courts in this respect concern the guarantee of the judge’s independence within the judicial organisation.
After the external demarcation of the domain of the judicial activity in Chapter 4, Chapter 6 focused on the internal demarcation of domains of competences. The distribution of judicial competences concerns a specific problem of the judicial organisation. Unlike the aspects treated in Chapter 5, which concerned the organisational prerequisites for the exercise of the judicial function, the distribution of judicial competences concerns the organisation of the judicial function itself. The question which has been dealt with in Chapter 6 concerns the “specialisation” in the form of a division of labour or a differentiation within the judicial organisation, i.e. the establishment of specific courts and chambers within courts for the settlement of specific types of cases, and the allocation of judges to courts for the settlement of specific types of cases. Principles originating in the two paradigms for the judicial organisation play a role in the deliberation of the producer of norms and underpin the legitimacy of the distribution of judicial competences in as far as they have been included in the constitutional framework for the judicial organisation. The distribution of cases fluctuates, on the basis of the principles of “territoriality” and “functionality”, between the establishment of “general” courts, which fulfil the classic “checks and balances” condition of “accessibility”, and the establishment of “specialised” courts, which fit into the idea of “new public management” and aim at the optimisation of the effectiveness and efficiency of the judicial system through “specialisation”. In the structure for the distribution of judicial competences which is thus established, it is necessary to find a balance between dispute resolution by “generalist” judges (the principle of classic “checks and balances”) and dispute resolution by “specialised” judges (the exception of “new public management”). The analysis of the legal systems of the Netherlands, France and Germany reveals that the producer of norms for the judicial organisation has to respect certain constitutional prerequisites when choosing “specialisation” in the context of the distribution of judicial competences, and when determining the form of that “specialisation”. Complementing and reinforcing effects of classic “checks and balances” principles and “new public management” principles come to light in the solution of a division of labour as such, and in solutions related to that division of labour, which concern for example the guarantee of the unity of the law and the settlement of conflicts of jurisdiction. Concerning the preservation of the “autonomous” legitimacy of the law regarding the judicial organisation, “specialisation” should not go as far as to cross the boundary set by the principles of “independence” and “impartiality”. This limitation has made it possible to indicate the specific limits to the realisation of “specialisation” in the context of the distribution of cases and in the context of the allocation of judges to courts.
The principles for the judicial organisation in the legal systems of the Netherlands, France and Germany have thus been compiled in a common frame of reference. They can be weighed against each other in debates concerning the modernisation of the judicial organisation, in which a balance is struck between classic “checks and balances” principles and “new public management” principles. The guarantee of fundamental values for the regulation of power in the State is put face to face with the recent attention for “effectiveness” and “efficiency” in modern legal systems. The constitutional framework and the implicating factors regarding the evolution of that framework form the basis for a constant re-evaluation of the balance between principles aiming at legitimising the judicial organisation through the guarantee of “autonomy” of the law and principles aiming at legitimising the judicial organisation through the realisation of “responsiveness” with regard to wishes formulated by politics and by society.
Many thanks - and congratulations - to Elaine!
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