Mitchel Lasser

Abstract:

1. Introduction

This paper summarizes my forthcoming book comparing the argumentative practices of the European Court of Justice, the French Cour de cassation and the United States Supreme Court. It argues that the Cour de cassation depends primarily on an institutional approach for generating judicial accountability, deliberation and legitimacy; that the Supreme Court depends primarily on an argumentative approach; and that the ECJ depends on a conglomerate mode that pastes together facets of the institutional and argumentative approaches.

This paper claims that the discursive practices, institutional arrangements and conceptual structures of these three courts are best understood by focusing on a fundamental structural feature that distinguishes between the French and American models of judicial discourse. Stated in the simplest terms, this difference boils down to the fact that the French model bifurcates its argumentation into two distinct discursive spheres (only one of which – the syllogistic French judicial decision – is consistently made public), while the American model integrates its two modes of argument in one and the same public space, namely, in the judicial decision itself.

Needless to say, the bifurcation/integration distinction is not the cause of Franco-American judicial difference, nor simply a reflection of it. It is both a cause and an effect, a formal and material distinction that reflects and produces a significant difference in how French and American jurists conceive of law and of the judicial role, and that also reflects and produces significant differences in French and American legal and judicial practice. The bifurcation/ integration distinction therefore offers a particularly rich point of access for the comparative study of French and American judicial theory and practice, a study that is all the more important given the French roots of the European Court of Justice.

This paper therefore argues that the bifurcation/ integration distinction is both indicative and formative of the particular problematics that shape and characterize the French, American and European Union’s judicial systems. The French judicial system, for example, is defined above all by how it deals with its particular problematic: how to maintain legislative supremacy while simultaneously encouraging and yet controlling judicial interpretive flexibility and normative power? Similarly, the American judicial system is defined above all by how it deals with its particular problematic: how to deploy simultaneously both more textually formal and more policy-oriented modes of argument in such a way as to control and legitimate judicial law-making? Finally, the EU judicial system is defined above all by how it deals with its particular problematic: how to adjust the French model in order to respond to the European Union’s publicly controverted normative and political environment?

The construction of, approach towards, and solution to these respective problematics go a long way towards explaining what the French, American and EU judicial systems are all about. The French solution to its particular problematic offers a careful example of conceptual and institutional design. The first element consists of the radical French discursive bifurcation, as a result of which the published French judicial decision consists of a single-sentence syllogism premised on Code-based textual grounds, while the open-ended, fundamental fairness discourse of legal adaptation and equity is relegated to a sheltered discursive sphere within the French judicial apparatus. The second element consists of the conceptual mediation of this discursive divide via the French notion of the “sources of the law,” which restricts law-making status and authority to the legislature. This restriction on the legal status of judicial decisions proves, however, to be simultaneously liberating, as it opens the door for flexibility in judicial decision-making. In effect, French civil judges are empowered to change their interpretations as needed – in the name of “equity” in particular cases or in the name of “legal adaptation or modernization” in classes of cases over time – precisely because these interpretations do not and cannot constitute “law.” Finally, the French approach involves the management of this residual, de facto judicial normative power: the French State creates a common and unified normative field through the educational formation of republican elites, and then polices that normative field through hierarchical institutional and professional structures.

The American solution to its particular problematic consists of the public integration of judicial discourse, one that generates an argumentative structure that controls and legitimates the judicial exercise of extensive normative power. Simultaneously granting full caselaw-making status to its judicial decisions and yet lacking the unifying and controlling institutional structures of the French legal system, the American system’s solution involves the public, argumentative demonstration of properly motivated and constrained judicial decision-making. In essence, the American model places more or less the full weight of legitimating American judicial decision-making on a single document – the judicial decision itself. As a result, American Supreme Court discourse – and indeed American legal discourse generally – relies on the publicly integrated or conglomerate form of its argumentation: it combines both its more formalizing and its more policy-oriented discourses in the single public space of the judicial opinion. Incessantly and carefully deploying the two modes of discourse side by side, American judicial discourse emerges as a very carefully constructed hodgepodge of seemingly contradictory interpretive impulses, one that is simultaneously hopeful for and suspicious of each of its interpretive options. The result is a carefully modulated, resolutely centrist and enormously powerful mode of argumentative justification that tends to manifest itself in various guises as the formalization of the pragmatic.

Finally, the European solution to its particular problematic involves the construction and maintenance of a softened version of the French discursive bifurcation. Lacking the unifying, controlling and legitimating institutional bases of the French judicial system, the ECJ adopts a somewhat more publicly argumentative approach. The ECJ therefore publishes both of its two discourses (the ECJ decision and the Advocate General’s Opinion) simultaneously in every case; it thereby effaces the rigid French separation of the two discourses and significantly tempers the difference between them. The ECJ then holds this more moderate bifurcation together by deploying – in both spheres – a purposive, systemic “meta” teleological discourse that on the one hand aims to promote a proper legal order that could generate the kind of normative and institutional unity that the bifurcated French model takes for granted, but that simultaneously depends on a public, discursive legitimacy that the American model brings to bear.

This paper thus offers an initial summary of my forthcoming book’s description of the problematics and solutions that characterize the French, American and EU judicial systems. The reader will of course have to await the book’s publication for an appropriately extensive consideration of the difficult but fascinating “rule of law”/ democratic theory issues raised by these three respective judicial approaches. In the meantime, however, I thought I might whet the reader’s appetite by briefly foreshadowing some of the book’s analysis of how each of the three courts handles such core issues as judicial control and accountability, democratic debate and deliberation, and judicial legitimation.