essay questions

Consequential Courts

JUDICIAL ROLES IN GLOBAL PERSPECTIVE

Edited by

DIANA KAPISZEWSKI University of California, Irvine

GORDON SILVERSTEIN Yale Law School

ROBERT A. KAGAN

University of California, Berkeley

CAMBRIDGE UNIVERSITY PRESS

z88 Manoj Mate

Seervai, H.M. 1973. "The Fundamental Rights Case at the Crossroads." Bombay La)

LXXV: 47. Seervai, H.M. 1991. Constitutional Law of India: A Critical Commentary, Vol. 2 (yd ec

Bombay: N.M. Tripathi. Shapiro, Martin. 1964. "Political Jurisprudence," Kentucky Law Journal 52: 294.

Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago: Universi)

Chicago Press. Shapiro, Martin. 2002. "The Success of Judicial Review and Democracy, in Martin Shapiro

and Alec Stone Sweet, eds., On Law, Politics, 6 Judicialization. London: Oxford Univei-sn

Press, p. 149.

Verma, Justice J.S. 1997. "The Constitutional Obligation of the Judiciary - R.C. Ghiya

Memorial Lecture," Supreme Court Cases 7: i.

Van Mehren, Arthur Taylor. 1965. "Law and Legal Education in India: Some Observations."

Harv. L. Rev. 78: n8o.

Yadav, Yogendra. 1999. "Electoral Politics in the Time of Change: India's Third Electoral

System: 1989-99," Economic and Political Weekly 34: 2393-99.

11

The Judicial Dynamics of the French and European

Fundamental Rights Revolution

Mitchel de S.-O.-l'E. Lasser*

This chapter analyzes an important and complex development that is currently

playing out at the intersection of the French and European judicial systems: a

whole series of courts (and court-like institutions) that had little or nothing to do

with "judicial review" are now in the midst of a mad scramble to master and

direct the development of fundamental rights jurisprudence. This chapter traces

this development and explains how the advent of the European Court of Justice

and the European Court of Human Rights has led to an intense interinstitutional

competition behveen the French and European High Courts, a competition in

which fundamental rights have served both as the opportunity that triggered this

competition and the preferred means to engage in it.

Part of the story of the dramatic rise of fundamental rights is undoubtedly social

and intellectual in nature. At the domestic level, France has been increasingly

fragmenting along pluralistic lines. This fragmentation has posed ever greater chal-

lenges to French republicanism, which has traditionally stressed the unitary nature

of both "the general will" and "general interest." The result has been a marked rise

in individual- and group-oriented pluralism increasingly expressed in fundamental

rights terms.

This trajectory functions at the supranational or transnational level, as well. As

political communities have become increasingly complicated cross-nationally as

well as intranationally, fundamental rights have risen dramatically in importance.

Fundamental rights have served in effect as a lingua franca across jurisdictions: they

operate as a common legal denominator and pool of common legal terms transferable

within and across the European polities. By focusing on individuals (including firms)

and their fundamental rights, courts have found a cross-culturally operative tech-

nique for resolving disputes that ostensibly steers clear of bigger aggregation/polis-

lilding enterprises.

Jack G. Clarke Professor of Law, Director of Graduate Studies, Cornell Law School.

290 Mitchel de S.-O.-l'E. Lasser

This common social and intellectual momentum has likely been reinfoi

the fall of the Berlin Wall and incorporation ofex-Soviet bloc and/or ex~tnta1;i

states into the Western European legal order. This liberalizing and anticomi

reaction has taken legal form not only via the constitutional process within

states, but also by their adherence to such symbolically charged rights-based ii

tions as the Council of Europe and the European Court of Human Rights.1 In s[

both the internal fragmentation and the external aggregation of political

ties have contributed to the stunningly rapid rise of the fundamental rights iju

throughout Europe.

However, that is not the entire story. The fundamental rights revolution is

a matter of the complex - and often competitive - interinstitutional dynamics

increasingly define the judicial arena in our ever more globalized legal space. Th<

judicial dynamics are particularly visible and pressing in contemporary Euroi

two reasons. First, the European judicial arena possesses two layers of powerful

operational courts: the domestic and the European judiciaries. Second, almost

national judiciaries in Europe belong to the Civil Law tradition; as a result, th^

typically possess multiple and often quite distinct judicial hierarchies, each head<

by its own "supreme court." In fact, even the European judiciary is led by

different courts: the European Court of Justice (ECJ) and the European Court

Human Rights (ECHR). The European domestic and supranational judicial orders therefore possess >|

distinctive structural feature: they deploy a plethora of high courts that operate ii

an overlapping and richly interactive judicial environment. As a result, all ofthes

high courts are now scrambling to master and direct the high ground offered by the

emergent fundamental rights regime. Some are better positioned to do so than othersj

This multiplicity of high courts leads to a group dynamic that reinforces th<

recourse to the fundamental rights idiom and contributes to its increasing doi

nance. Almost every European judicial player now faces powerful pressures to jumj

on the fundamental rights bandwagon or be left intellectually and institutional^

behind. Each judicial institution must accordingly deploy and seek to control this]

rising idiom, even if doing so threatens to refashion or even replace that instihi-|

tion's traditional role definition. This has prompted a frantic race to the "top" ofan|

increasingly unitary doctrinal, procedural, jurisdictional, and intellectual scheme:;

the evermore powerful and ubiquitous fundamental-rights framework.

This chapter offers a case study of the dramatic circulation of fundamental rights ''•

pressures behveen the numerous high courts in play at the intersection of

domestic and supranational European judiciaries. It examines the ongoing

trial" litigation (conducted under Article 6-1 of the European Convention on Human

Of course, some of the motives for such adherence are deeply practical: candidate countries

EU must effectively sign onto the ECHR fundamental rights regime. See the "Copenhagen Criteria

for accession to the EU, Bulletin of the European Community 6/1993, at I.i;.

licial Dynamics of the French and European Fundamental Rights Revolution 291

challenging the decision-making procedures used by the numerous high

.signed on the French judicial model.

is analysis, which summarizes the conclusions of my recent book (2009),

on the French and European high courts. It explains that what appears

st blush to be a simple case of external European (and, in particular, ECHR)

on the French judiciary to modify its traditional decision-making proce-

res actually represents a far more complex and highly charged set of interactions

;tween multiple French and multiple European courts. This examination could

isily an(^ f]ruitfully be expanded to include other national high courts, ranging from

se direcdy involved in the "fair trial" litigation (such as the Belgian, Dutch, and

Portuguese Supreme Courts) to others particularly prominent in the rise of funda-

icntal rights (such as the Bundesverfassungsgericht, the German Federal Constitu-

ional Court). As will soon become apparent, however, the multifaceted interaction

between the French and European courts is more than sufficient to suggest the key

ictural dynamics currently driving the European fundamental-rights revolution.

For heuristic purposes (and heuristic purposes only), I adopt a four-part analysis

lat examines the four basic types of judicial pressures that operate behveen and

nthin the European and French courts: European pressures on the French courts

EPart II); French pressures on the French courts (Part III); French pressures on the

iuropean courts (Part IV); and European pressures on the European courts (Part

). This highly structured approach offers hvo advantages. First, it organizes an

[otherwise confusing morass of interactions behveen a wide range of; domestic and

I international courts. Second, working systematically through this simplified analytic

Istructure eventually demonstrates that the French and European judicial orders are

increasingly difficult to disentangle, both theoretically and practically: interventions

at every level constitute interventions at all others.

This chapter comes to several conclusions. I state them straightforwardly right now

,in order to help the reader work through the institutional complexities that follow.

First, the current interinstitutional dynamics are prompting a group convergence of

all domestic and European High Courts on the fundamental-rights idiom, however

disruptive this may be to the particular courts in question. As the French and

European example demonstrates quite clearly, there appears to be no effective opt-

out of the fundamental-rights framework for any of these courts.

Second, this all-but-obligatory convergence has forced these courts to translate

their prior procedural, doctrinal, and conceptual schemes into fundamental-rights

terms. This translation process has proven to be not only deeply competitive, but

often quite creative as well: numerous individual, group, and institutional interests

are in play; the stakes are patently major; and the results are not preordained. This

has led to widely divergent interpretations of how to construct and implement the

emerging fundamental-rights framework.

Third, the struggle to master and direct these legal developments has further

reinforced the rising fundamental-rights regime. The domestic and supranational

292 Mitchel de S.-O.-l'E. Lasser Judicial Dynamics of the French and European Fundamental Rights Revolution 293

European judiciaries function in an interinstitutional context whose group dynam;,

have created a strong incentive regarding fundamental rights. The most empoy^

ing strategy for any given court is not to attempt to evade the often disruon,3

fundamental-rights regime; not only does such a refusal appear retrograde, it Ie;

the institution at the interpretive, doctrinal, and institutional mercy of those

have taken the opposite tack. The more effective strategy is to embrace and even

seek to lead the emerging regime by aggressively developing expansive fundament

rights positions. This "maximalist" approach is the most effective means to disable

and trump troublesome interpretations by legal competitors, maintain control QV(

one's own institution, and exercise institutional and intellectual leadership of th<

emerging judicial order.

Fourth, these developments have prompted major constitutive developments ii

both the French and European judicial systems. The former is turning itself evei

more completely and explicitly into a fundamental-rights-based system, in star!

contrast to its traditional republican approach, which focused on a (supposed^

unitary general will. The latter is following suit by: i) reproducing the intra-domesti^

tensions behveen the ordinary-administrative and fundamental-rights high coui

and 2) replicating these domestic courts' solutions to such tensions. This suggests th;

the European high courts are increasingly organizing themselves into an integratec

judicial order along recognizable domestic lines. The chapter concludes with som<

methodological warnings.

THE TRADITIONAL FRENCH JUDICIAL MODEL: THE PREEXISTING EQUILIBRIUM

The French legal system has traditionally been defined - procedurally, doctrinally,

institutionally, structurally, and intellectually - by its distinctive brand ofrepublican-

ism. The classic French package has consisted of four fundamental and interlocking

features: i) a unitary conception of the general will and general interest; 2) thej

supremacy of the legislature as the voice of the general will; 3) a strict separation of^

the judiciary from the political branches of government; and 4) a commitment to

elite and expert institutional decision making. These features have traditionally been

understood to entail several more, including: 5) the refusal of judicial review; 6) the j

establishment of separate administrative and constihitional tribunals; 7) a doctrine of

the "sources of the law" that refuses to grant the ordinary judiciary lawmaking pow-|

ers; 8) the theory of la loi ecran (i.e., the "legislative screen" that shields legislation]

from administrative review regarding its compatibility with the Constitution or inter-

national obligations); 9) legality based - as opposed to fundamental-rights based-j

administrative review; and 10) institutionally oriented - as opposed to inc

oriented - judicial decision-making procedures.

Article 6 of the 1789 Declaration of the Rights of Man and of the Citizen declares:

"La loi est I'expression de la volonte generate" ("Legislation is the expression of the:

>ral will"). This statement of principle establishes the core of the traditional

;nch understanding of law. Political will is, in good Rousseauian fashion, general;

. js not divisible into subgroups, never mind into the conflicting rights and interests

•individuals (Suleiman 1974:24-29,297-323; Hazareesingh 1994:155-171; Rousseau

32: l64-l82, 193-196, 214, 227-30).2

Tlie supremacy of general legislation requires a strict separation of the judi-

from the political branches of government. The Revolutionaries established

this strlct seParation as early as August 1790, when they passed the Law on Judi-

cial Organization: judges were explicitly forbidden to interfere with legislative and

jjninistrative decisions (French Code de {'organisation judiciaire tit. II, arts. 10,13,

Aug. i6-14> 179°)- Far from adopting a system of checks and balances, this approach

unambiguously rejects judicial review.

That said, the French system has long been far more flexible and nuanced than

has traditionally been portrayed. Although judicial review of the acts of the political

branches has been anathema, the French established a series of specialized admin-

istrative tribunals within the Executive branch to perform quasi-judicial review of

the executive. Furthermore, although the ordinary judiciary was explicitly denied

lawmaking powers (French Civil Code Articles 5 and 1351), the Courts have neither

been, nor were they intended to be, passive actors in the French legal order. Por-

talis, the Civil Code's primary author, made the point expressly: codified legislation

could only establish the general outlines of the law; judges (and academics) would

necessarily have to work out the specifics and adapt the law to the demands of a

society in constant change (Portalis 1799).

Institutional and professional structures were designed to ensure the accountabil-

ityand representativeness of French judges. These judges spend their entire careers

within a unified and hierarchical judicial institution (Lasser 2005:182-185). Because

they have tested into the system by formal state examinations, have been trained

for their office by state educational institutions, and been promoted by state-defined

and managed meritocratic means, the judiciary as a whole bears the imprimatur of

elite republican representation (Lasser 2005: 331-334).

Having gone to such effort to select, train, and organize its judges, the French

system then gives them the necessary procedural and institutional means to manage

the application and development of la loi's broad provisions. The judicial decision-

making process of the French High Courts is accordingly dominated by the Courts

themselves: in some important sense, it is the Court, not the litigants, who are

understood to be appropriately representative of the state and citizenry at large.

Once the parties have submitted their written pleadings, it is therefore the judicial

panel that effectively takes responsibility for the case. Partisan oral argument by

the parties all but withers away, as elaborate and multistage internal discussions

In fact, Article 3 of the 1958 Constitution goes to the bother of spelling out that, "No portion of the

people may arrogate to itself, nor may any individual arrogate to himself, the exercise [of national

sovereignty]."

294 Mitchel de S.-O.-l'E. Lasser Judicial Dynamics of the French and European Fundamental Rights Revolution 295

behveen key judicial magistrates - such as the advocate general and the judicis

rapporteur - take center stage (Garapon and Papadopoulos 2004: no-nz). Shiel;

from public view, judicial debates unfold in absolute candor and without fear

political retribution.

This sequestering approach also produces an important secondary effect: it greafl,

diminishes the argumentative and doctrinal control that these judges can exer

through their cryptic, collegial, single-sentence, and syllogistic judgments. The

logism also stands as a powerful reminder: only legislation constitutes the true

expression of the general will.

This supremacy of the general will has traditionally meant that the ordii

judiciary - or, for that matter, the quasi-judicial administrative tribunals - can.,

not call la loi into question, whether on domestic (constitutional) or intemationall

(treaty/convention) grounds. Even when the administrative tribunals review Exec-

utive branch actions at the behest of disgruntled citizens, they traditionally do sol

not so much in order to vindicate the rights of the individual, but rather to ensure]

that the state has acted according to its own standards of appropriate behavior. This

review has therefore traditionally been focused not on the individual's fundamental!

constitutional rights, but on the legality of the state's actions.

Finally, the Fifth Republic's treatment of constihitional review reflects almostj

all of these traditional assumptions. It therefore adjusted, rather than subverted;

the traditional equilibrium between the ordinary courts, administrative tribunals,

and political branches. First, constitutional review was established to police the

division between the Legislature and Executive branches, not to protect fundamental

rights from legislative or governmental encroachment. Second, individuals could

not trigger such review; only a small set of major state actors could file constitutional

complaints. Third, the newly created Constitutional Council was established outside

of the judiciary. Finally, the Council could only perform review a priori (i.e., while

the challenged legislative act was still a pending bill). Once the bill had been passed

into law, and had thus become the formal expression of the general will, it was no

longer subject to challenge.

EUROPEAN PRESSURES ON THE FRENCH JUDICIAL SYSTEM: THE DOMESTIC ORDER THROWN INTO FLUX

General External Pressures

The traditional model just described has certainly not been the product of a static

legal or judicial history. Slowly developed and deeply entrenched over the course

of the last two centuries, the model had nonetheless reached a recognizable -

undoubtedly complex and somewhat malleable - state of equilibrium. In the last

few decades, however, it has been undergoing a stunningly rapid and sweeping

transformation.

The 6rst i"lPortant pressures for the current transformation emerged from the

^ropean legal plane. In 1964, the ECJ began insisting on the supremacy or "prece-

]ence" °^ European law over conflicting national law.3 This doctrine called on

i tional courts to refuse to apply national laws inconsistent with European law; in

t, it required judicial review, albeit in the name of European law.

Given the traditional model described in Part II, it should come as no surprise

that the French legal system did not exactly rush to adopt this jarring new doctrine.

Indeed, it was not until 1975 that the Cour de cassation took the step demanded by

the EC J in 1964. It is a testament to the lasting power of the classic French approach,

E.however, that the Conseil d'Etat and the Constitutional Council refused to follow

suit for almost fifteen more years: it was not until 1989 that the Conseil d'Etat finally

buckled under by overturning its own jurisprudence.4 This shift represented an

important moment in the acceptance of European law; but it was a truly monumental

event in the internal history of French law. The theory of the loi ecran had finally

fallen, and with it the primacy of legislation and the general will, if only in the

context of European law.

This development threw the French legal order into a state of disequilibrium.

The new role adopted by the French courts meant that individuals could now seize

the ordinary and administrative courts to block the operation of French legislation

in the name of European rights (including fundamental rights) of EU or ECHR

origin. However, these same individuals could not do so in the name of domestic

French rights, even of constitutional status.

This discrepancy had a dual effect. First, the sudden availability of justiciable

European rights constituted a bonanza for individuals and firms searching for a basis

to challenge unfavorable legal outcomes at the national level. Second, this new turn

to superior European norms not only empowered the national judiciary vis-a-vis the

political branches, but also disrupted the traditional French mode for reviewing the

acts of the Executive branch. Quasi-judicial review of the executive had been an

integral part of the French legal order since at least 1799, when Napoleon established

the Conseil d'Etat (Brown and Bell 1998: 46-48). Over the ensuing 200 years, the

Conseil developed a sophisticated jurisprudence for challenging executive rules and

acts, which has been applied throughout the country by a large administrative court hierarchy.

European rights jurisprudence accordingly challenges French administrative

jurisprudence rather directly. Elaborated by the ECHR and the ECJ, this jurispru-

dence undermines the institutional leadership of the Conseil d'Etat, which tra-

ditionally elaborated the bases for reviewing state acts. Th'is institutional shift also

challenges the conceptual structure and very ethos of French administrative jurispru-

dence. Review had been steeped in French republican notions. It was grounded in a

3 Costa v. E.N.E.L., Case 6.64 (1964) CMLR 425.

4 See Judgment of the Conseil d'Etat of 20 October 1989 (Ni'coto), (1989) Rec. Lebon 190.

296 Mitchel de S.-O.-l'E. Lasser Hcial Dynamics of the French and European Fundamental Rights Revolution 297

series of "legality" doctrines traditionally oriented toward the state: the key issue

whether the state had behaved according to proper administrative morality 5

increasingly dominant European approach, however, offers a more liberal

tive: its key question is whether the rights - including the fundamental rights

the individual have been violated.6

Targeted External Pressures

Plaintiffs have now successfully wielded these newly justiciable European rights to

overturn a whole series of specific French legal rules, ranging from the

nition of sex changes to the calculation of VAT taxes.7 Amazingly, plaintiffs have

even leveraged their European rights to target the decision-making procedures tra-

ditionally deployed by all of the French High Courts. This "procedural" litigation

has proven to be immensely disruptive: it subjects the ethos and practices of these

proud "Supreme Courts" to the critical appraisal of foreign courts on the basis of an

unfamiliar fundamental-rights logic.

In a major and ongoing line of decisions handed down over the last ten years,

the ECHR has struck repeatedly at the decision-making procedures of the high

courts designed on the French model.8 In doing so, it has condemned precisely

those practices and institutional structures that reflect the classic French republi-

can understanding of the judicial role: stressing the importance of permitting the

individual litigant to take an active role in litigation, it has criticized the French

high courts' characteristically closed and institutionally oriented decision-making

procedures.

These French procedures were traditionally designed to permit two key judicial

figures - the rapporteur and an advising magistrate (known as the advocate general at

the Cour de Cassation or the commissaire de gouvernement at the Conseil d'Etat) -

to lead the judicial panel in intensive and candid debates about how to decide cases

in such a manner as to promote the general interest and public good. As a result, the

litigants would almost always wave their nominal right to engage in oral arguments:

once they had submitted their written pleadings, their role in the decision-making

process was effectively over.

5 I owe the elegant term administoative morality" to Brown and Bell (1998: 2i6).

6 These two approaches could of course be fused: the violation of an individual's rights could, for

example, be treated as a violation of state morality.

~1 See, e.g., Court ofCassation judgments of Dec. n, 1992, JCP, jurisprudence no. 21991, p. 41 (conclusions

]6ol); Joined cases €-177/99 and 0-181/99 Ampafrance v. Directeur des serrices fiscaux de Maine-et-

Loire (2000) ECR 1-7013.

8 The ECHR cases specifically condemning the French Supreme Courts only date back to 1998, but

the first ECHR decision to condemn the French model of judicial decision making dates to 1991,

when the ECHR censured similar procedures utilized by the Belgian Cour de Cassation. See Borgers

v. Belgium, 214 Eur. Ct. H.R. (Ser. A) 22 (1191); Reinhardt and SKmane-Kaid v. France, 1998-1! Eur.

Ct. H.R. 640; Kress v. France, 20oi-V[ Eur. Ct. H.R. i; Martinie v. France, case no. 58675/00, (April

12, 2006). Retrieved from http://www.menschenrechte.ac.at/orig/o6-2/Martinie.pdf.

Elaborating a fundamental-rights perspective that stresses the right of individuals to

in active role in litigation, the ECHR has found much to fault in the traditional

>. In particular, it has insisted that individual litigants be granted

and response rights with respect to the key internal documents generated

ithin the French preparatory judicial debates. First, because the judicial advisor

light put forward damaging arguments, the litigant must be allowed to receive the

advisor's conclusions in advance in order to respond to them as necessary at oral

iments. Second, the judicial advisor must not be put in a privileged position

gaining access to the otherwise unavailable report and draft judgments of the

,-gpporteur. Finally, the advisor must also be removed from the judicial panel's final

deliberations, lest he be perceived (accurately or not) to be gaining an argumentative

advantage.

The ECHR's Article 6-1 "fair trial" jurisprudence could hardly have done a more

thorough job of pitting its individual fundamental-rights perspective against the

French judicial system's republican self-understanding. Reducing the prototypically

republican figure of the judicial advisor to little more than a potential opponent

of the individual litigant undermines the governing logic of the French system;

namely, that it is the judicial institution - rather than the individual and self-

interested litigant - that best represents the general interest and public good. The

ECHR instead placed the individual litigant in a privileged position: by dint of his

fundamental procedural and substantive rights, he had to be empowered to play an

analytically and procedurally central role, even at the expense of the French courts'

traditional structure, ethos, and practices.

FRENCH PRESSURES ON THE FRENCH JUDICIAL SYSTEM: INTERNAL MOTIVATIONS

The French legal order has thus been subjected to tremendous pressures from the

European rights-based approach in general and the ECHR's fair trial jurisprudence

in particular. However, it has also been exerting major pressures on itself at the

same time. These internal motivations and dynamics are caused in large measure by

the broad and enduring structural design of the French courts.

As is the case in most Civil Law systems, the French "judiciary" is organized into

several distinct hierarchies. The "ordinary" "judicial" courts, headed by the Cour

de Cassation, handle civil and criminal litigation. The "adminisb'ative" tribunals,

headed by the Conseil d'Etat, are instead housed within the Executive branch.

This distinction is not merely formal. Ordinary French judges receive their educa-

tional and vocational training at the Ecole Nationale de la Magistrature, the national

judge school. Administrative judges, however, receive theirs at the particularly presti-

gious Ecole Nationale de 1'Administration, which trains all high-ranking Executive-

branch civil servants. They are therefore prepared above all not to be judges, but

to manage state affairs. For its part, the Constitutional Council is a free-standing

298 Mitchel de S.-O.-l'E. Lasser judicial Dynamics of the French and European Fundamental Rights Revolution 299

(and largely political) institution, distinct from both the ordinary and administrat;.

tribunals.9

This division of judicial turf into subparts has prompted somewhat comDptit;.

interinstitutional motivations and dynamics. On the sociological front, the 1ii,

Executive judges look upon their civil/criminal counterparts with a certain disdaii

The former are the cream of the elite management team that composes the "i

nobility" (to use the term coined by Bourdieu 1996); the latter are mere judges.

the institutional front, the Constitutional Council has come to play an increasii

prominent role in defining the proper struchire and operation of the state, a fielj

previously dominated by the Conseil d'Etat. Finally, on the doctrinal front, the

partitioning of the "judiciary" has fostered interpretive complexities: even if the

jurisdictional field is divided between the three hierarchies, the three institutions

periodically elaborate doctrines in related and even overlapping fields.10

The addition of a strong European presence on the French legal scene has

multiplied the number and stakes of such competitive judicial interactions; this has

added another layer of internal motivation for the assorted French courts' institu-

tional responses. First, European law represents a whole new field of action on which

French judicial institutions can compete. Second, to conquer the European legal

terrain is to occupy the high ground for French domestic law purposes: European

law is, by both its own definition and French constitutional standards, superior to

French law. Third, European law cuts across the key jurisdictional and doctrinal

divisions that we have been describing: corporate, environmental, or other Euro-

pean regulation can generate litigation in any of the domestic judicial hierarchies.

These factors have in essence thrown the French courts into an ongoing negotiation

regarding their respective roles, domains, and powers.

The fundamental rights doctrines of the ECHR offer the clearest example of the

collapsing of domestic divisions and distinctions. ECHR law is superior law; it must

be applied by all state actors (including the courts); and it therefore operates across

the board in disputes litigated in any and all of the judicial hierarchies. This alters

the nature and intensity of the competition between the three major "judicial" insti-

tutions. Now that European law bridges the substantive and jurisdictional divisions

behveen the three major institutions, the classic partitioning of the French "judi-

cial" field blurs: all three must increasingly interpret and apply the same (superior)

fundamental-rights principles.

The internal motivations and dynamics of the French judiciary were already

apparent decades ago when the ECJ insisted that the precedence (i.e., superiority)

9 Unlike the ordinary and administrative judges, the members of the Constitutional Council serve for

limited terms (nine years) and are directly politically appointed by the heads of the political branches (the President of the Republic and the Presidents of the two legislative houses).

10 For example, "tort" doctrines are elaborated in both the ordinary courts (for private injuries) and

the administrative tribunals (for public ones). Similarly, procedural rights of "defendants" have been

elaborated in the ordinary, administrative, and constitutional courts, albeit in somewhat different

contexts.

law required domestic courts to refuse to apply conflicting national

,. Deeply attached (professionally, institutionally, and intellectually) to the

ich republican tradition, the Conseil d'Etat was dead set against recognizing the

recedence of European law and violating the doctrine of la loi ecran by exercis-

review over French legislation. Composed primarily of major French political

similarly attached to existing national traditions and power structures, the

constitutional Council was not much more enthusiastic. Indeed, having recently

inted itself the power to review legislation for substantive violations of funda-

mental rights incorporated into the 1958 French Constitution, the Council was

in no rush either to adopt another deeply controversial position or subjugate the

authority of its constitutional mission to routine European legal norms. The Cour

Je Cassation, however, had excellent motivations for staking out a different (and

>ro-European) position: not only could it drastically empower itself relative to the

legislative branch," but it could also greatly increase its standing relative to the Con-

seil d'Etat and Constitutional Council. By dutifully following the ECJ's demands,

not only would it adopt the mantle of the open-minded, progressive, and commer-

cially sensitive institution, it could suddenly wield legal materials superior to those

handled by its sister institutions. The results followed suit: in 1975, the Cour was

the first French Supreme Court to set aside a loi that conflicted with a European

norm; the Constitutional Council began to waver noticeably in the mid-1980s; and

the Conseil d'Etat finally caved in 1989." :

Similar French interinstitutional motivations and dynamics have been unleashed

repeatedly in the face of European legal pressures. The ongoing Article 6-1 "fair

trial" litigation offers a particularly clear and telling example. The Conseil d'Etat

has steadfastly resisted the ECHR's "fair trial" jurisprudence. Advancing arguments

so tenuous as to border on the disingenuous, it has done all in its power to maintain

its traditional understanding of republican procedures. It has refused to remove its

judicial advisor (the Commissaire de gouvernement) from its internal deliberations;

and it has offered litigants as little as possible in the way of information and response

rights (Lasser2oo9: 93-94).13

The Cour de Cassation, however, has jumped on the opportunity presented

by the ECHR's jurisprudence to institute a major overhaul of its decision-making

procedure. These reforms significantly increase the capacity of individuals, firms,

and interested parties to intervene aggressively in the decision-making process. In

all important cases, the rapporteur must now disclose her report's legal analysis not

only to the parties well in advance of oral argument, but also to the public at large:

This is the so-called empowerment thesis (Weiler 1981,1994).

u See Cass. mixte, Judgment of May 24,1975, D. 1975, p. 497 (Jacques Vabre); Judgment of the Consti-

tutional Council 86-116 of Sep. 3,1986, (1986) Recueil des decisions du Conseil Constitutionnel 135;

Ni'cofo.

3 Even the Conseil d'Etat's recent reforms changing the title of the judicial advisor from the Commis-

saire de gouvernement to the Rapporteur public are designed to resist the ECHR's jurisprudence. See

Art. R 733 of the Code de justice administrative.

300 Mitchel de S.-O.-l'E. Lasser iicial Dynamics of the French and European Fundamental Rights Revolution 301

it is to be published alongside the final judgment in the Cour's official reports.

result, the judicial advisor (the advocate general) no longer obtains privileged

to internal judicial information. Not only can he only receive the same "objectn

report" as the litigants, but he has been banished altogether from the Cour's

and post-oral-argument deliberations. Finally, the litigants can respond either

or in writing to the advisor's conclusions to the court. In short, the Cour has chc

to shift the balance of procedural power noticeably in the direction of private narti.

at the expense of the advocates general. The Article 6-1 fair trial" litigation

thus triggered a schism between the Conseil d'Etat and the Cour de Cassatic

which again reveals the latent structural and intellectual tensions behveen these

domestic high courts.

This window into the internal diversity of the French judiciary holds great analytic

importance for the examination of the French judicial system, European judicial

system, and interaction between the two. On the French side of the equati<

the tensions between the Cour and the Conseil demonstrate that the institutional

and intellectual threat (or promise) posed by the rise of the European courts and

fundamental rights idiom affects different institutional players quite differently. Put

simply, their motivations differ.

Furthermore, the institutional schism between these hvo high courts hardly

exhausts the wide range of domestic responses. Even within the Cour de Cassation,

which has taken a pro-European law and fundamental-rights-friendly approach,

there is endless disagreement about what such stances actually require. All of the

fundamental-rights norms need to be interpreted, and the range of possible interpre-

tations is obviously quite large. Some factions wish to interpret these fundamental

rights in a dignitarian fashion that empowers disadvantaged groups relative to the

state and powerful private interests. Others seek, to the contrary, to interpret them in

such a fashion as to protect vested economic and property rights from the disruptions

threatened by such a dignitarian approach. The key is to recognize that, despite their

disagreements, all of these French institutions and factions have converged on fun-

damental rights as the appropriate mode of legal analysis, as each jockeys to control

the development of supremely powerful fundamental rights within the domestic

legal order.

Moreover, the institutional competition on the fundamental-rights front has devel-

aped simultaneously with regard to French constitutional norms. The reasons for

this are both structural and doctrinal. First and foremost, the Constitutional Council

has traditionally been limited to abstract a priori review of legislation. As a result, it

only got one crack at reviewing a given piece of legislation. Once it had given the law

its blessing, the ordinary and administrative courts took over that law's interpretative

development. Although these courts could not formally review the law and declare

it unconstitutional, they could - and necessarily often did - apply it in light of their

own interpretations of constitutional norms.

The Constitutional Council has had only very weak means to control such ongoing

stitutional interpretation of both legislative and constitutional norms.14 Individu-

could neither petition the Council directly nor refer concrete judicial interpreta-

1 the Council for further constitutional review. The Council therefore had only

first say in constitutional interpretation;15 the ordinary and administrative courts

^yould then elaborate their own interpretations in a relatively decentralized fashion.16

The absence of an important "state action doctrine" compounds this interpre-

tive decentralization. Almost any litigant in any private controversy can put forward

arguments couched in fundamental-rights terms, thereby triggering further constitu-

tional interpretations. In this manner, contract clauses have been challenged on the

)unds that they violate the right to exercise a profession, malpractice liability has

been imposed in the name of the dignitarian right to bodily integrity, and the like.17

The combination of external pressures, internal motivations, and institutional

structures has thus led fundamental rights (of both European and French origin)

increasingly to dominate the French legal terrain in almost all domains. The advent

of fundamental rights thus challenges the structural, institutional, and doctrinal

divisions that have traditionally partitioned the French judicial order into relatively

distinct subparts. As we shall soon see, it challenges the division between the French

and European judicial orders, as well.

FRENCH PRESSURES ON THE EUROPEAN JUDICIAL SYSTEM: EXTERNAL PRESSURES IN REVERSE

The pressures exerted behveen the European and French judicial orders are not a

one-way sb-eet. The institutional roots of the returning pressures can be inferred from

the internal tensions and motivations described above: the multiplicity of domestic

high courts. The European courts are negotiating their relationship with a multi-

faceted and fractured set of French judicial institutions whose own interinstitutional

motivations function as strongly on the domestic level as on the European one. The

14 Perhaps the most important of these powers is the capacity to condition its approval of legislation

on interpretive reservations (Bell 1992, 2001). This approach seeks to control the potential meaning

and application of the challenged legislation over time. However, there exist no formal policing

mechanisms for enforcing such reservations.

5 Even this power is debatable: the Conseil d'Etat actually has the first say, as it gives advice to the

government about the constitutionality of proposed legislation (Bell 1992).

16 The recent amendment of the French Constitution has changed this state of affairs, although it is

not yet clear how significantly. The addition of Article 61-1 now allows references to be made to

the Council in concrete cases. Although this opens the door for a posteriori review of legislation

(undoubtedly a major development), it establishes the Cour de Cassation and the Conseil d'Etat as

the gatekeepers to the Conseil. This effectively maintains the partial autonomy of these high courts'

interpretive powers in the constitutional realm (Lasser 2009).

7 See, e.g., Cass. Soc., July 10,2002,D. 2002, 2491, note Serra; Cass. ire civ., Oct. 9,2001, D. 2001, 3470,

rapport P. Sargos, note D. Thouvenin.

302 Mitchel de S.-O.-l'E. Lasser ]udicial Dynamics of the French and European Fundamental Rights Revolution 303

a

judicial chess match is therefore being played on at least two levels at once.

moves on either level affecting the relationships on the other.

This reality presents strong opportunities for the European judiciary. B(

European law qualifies as superior (if only by ECJ doctrine), it is relatively g,

for European legal institutions to enlist the support of tactically insightful dornesti

counterparts, who now function as agents for European legal progress in the natii

legal order. Internal French judicial motivations thus offer welcoming points ofenfa

for European fundamental-rights pressures.

However, this state of affairs also imposes significant costs. The multiplicii

domestic high courts, when combined with the interpretive leeway of fundamental.

rights norms, leaves the development of European law vulnerable to the interpret^

decisions taken by self-interested domestic legal institutions. The Article 6-1 fair trial

litigation provides an excellent example of this dynamic.

When the ECHR started condemning French High Court decision-making pro.

cedure some ten years ago, the French courts had some tough decisions to make

about how to respond. The range of possibilities was quite large. For example, the

1998 Reinhardt decision condemned the unequal ( imbalanced") access given to

the reporting judge's work product in Cour de Cassation cases (the judicial advisor

received all of this preparatory material prior to oral arguments; the litigants received

none).18 Furthermore, the 2001 Kress judgment held that the judicial advisor at the

Conseil d'Etat (the commissaire de gouvernement) could not legitimately retire with

the sitting judicial panel to participate in post-oral-argument judicial deliberations,

lest the appearance be given that he might press his arguments in a prejudicial

fashion.19 The French Supreme Courts could have legitimately adopted a wide

range of potential responses, each premised on more or less expansive or restrictive

interpretations of the ECHR's jurisprudence.20 For example, the requirement that

the litigants receive the same access as the advisor to the judicial materials prepared

in advance of oral arguments does not settle how much access should be given to

what kind of information.

As we have seen, the Conseil d'Etat and the Cour de Cassation adopted fundamen-

tally different tacks in the face of the ECHR's decisions. The Conseil stonewalled

as best it could by refusing to remove the judicial advisor from its final delibera-

tions (it merely required him to remain silent). The Cour de Cassation, however,

removed him not only from the final deliberations (as apparently required by the

ECHR's Kress judgment), but also from the preparatory ones that take place before

oral argument. Indeed, the Cour used the ECHR's jurisprudence as a springboard

to rework its decision-making procedures in a manner that significantly increased

the procedural rights of litigants, interested parties, and the public at large.

18 See Reinhardt, 1998-1! Eur. Ct. H.R. at 666.

*9 Krcss at para. 70-72.

20 Nick Huls (Ch. 7 in this volume) underlines this interpretive agency in his insightful analysis of the

Dutch Hoge Raad's expansive interpretations ofEU law and jurisprudence.

\Ve can learn a great deal from this type of interchange. First, even in instances in

a European court has settled an issue in a seemingly straightforward fashion,

nonetheless remains more than enough room for ongoing interpretive effort at

domestic level. Second, expansive domestic interpretations of European law in

affect become European law, if only for domestic purposes. That is, the Cour's expan-

interpretation of what was required by the ECHR's jurisprudence functions as

^e meaning of European law in France. The Cour's procedural modifications were

gje in the name of European law, and the ECHR has few viable means of policing,

pever mind overriding, this interpretation. On the practical level, the ECHR can

only effectively oversee a tiny percentage of the cases that raise fundamental-rights

issues arising from the Convention: there are limits to how many cases an institution

composed of only one judge per country can possibly handle. As a prudential mat-

ter, things are not much better. Faced with the recalcitrance of the Conseil d'Etat,

could the ECHR really object to the exuberance of the Cour de Cassation, thereby

jeopardizing the Cour's ongoing support of the ECHR project? As a legal matter,

furthermore, on what basis could the ECHR criticize the Cour? The Convention

and its ECHR interpretation set minimum fundamental-rights standards, not max-

imum ones. Beyond this minimum level, domestic legal actors are free to read the

Convention as liberally as they like.

These factors demonstrate that expansive domestic interpretations of European

law exert strong pressures not only within a given domestic level order, but also on

the European one, to the point that they effectively become European law. Within

the national legal order, they specify what European law requires. At the European

level, the ECHR has excellent prudential reasons to adopt such interpretations as its

own. In fact, these expansive domestic interpretations even operate between different

domestic orders: expansive positions taken by the Belgian courts, supported (almost

by necessity) by the European ones, exert pressures on their French counterparts

(Lasser 2009).

This cycle of pressures reveals an essential attribute of the ongoing fundamental-

rights explosion. Domestic legal actors have powerful incentives to frame their

interpretations in expansive fundamental-rights terms. To adopt a contrary tack is to

invite sanction, but to take an expansive approach is deeply empowering. When art-

fully done, it helps insulate the domestic court from effective European intervention

(Caruso 2004), at the same time permitting it to exercise intellectual, institutional,

jurisdictional, and doctrinal leadership on both the national and supranational

levels.

This dynamic has helped fuel the fundamental-rights revolution. Every major

domestic judicial institution has good reason to engage in the increasingly frantic

race to the top" of the fundamental-rights regime, in which the courts seek to

recast their preexisting doctrinal and intellectual frames in fundamental-rights terms.

This dynamic exerts tremendous pressures back on the European judicial order,

as it fosters a decentralized fundamental-rights one-upmanship that the European

304 Mitchel de S.-O.-l'E. Lasser

courts cannot efifectively control. The internal motivations of the French

manifest as external pressures imposed on the European courts.

EUROPEAN PRESSURES ON THE EUROPEAN JUDICIAL SYSTEM

The European courts are by no means immune to these fundamental-rights

sures. As suggested above, the domestic courts can back the European ones ii

something of a corner: by casting their domestic judgments as expansive interpreta-

tions of European fundamental-rights norms, they can pressure the Europeai

to ratify and even adopt these interpretations. That is not all. The European judici;

is no more unified than its domestic counterparts: it is headed by two preeminent

courts, the ECJ and the ECHR, who have strong internal motivations of their own

to pressure each other quite strongly on the fundamental-rights front.21 It should not

be surprising, therefore, to see that the European courts reproduce many of the same

interinstitutional dynamics that characterize the domestic judicial terrain.

As in the domestic arena, the European courts are situated differently with regard

to fundamental rights. The ECHR is on its home turf when elaborating fundamental-

rights doctrines. Such work represents its jurisdictional, institutional, and doctrinal

raison d'etre. The ECJ, however, is in a very different situation. It has long exercised

review over actions taken by the EU institutions. But such review was based not

on fundamental rights, but on the four legality" grounds listed in Article 263 (ex

230) of the EC Treaty: lack of competence, infringement of an essential procedural

requirement, infringement of [the] Treaty or of any rule relating to its application,

or misuse of powers." As knowledgeable readers will recognize, this legality frame-

work faithfully reproduces the state-oriented good-governance approach deployed

domestically by the Conseil d'Etat: the four traditional grounds for reviewing the

legality of French administrative actions are none other than incompetence, vice de

forme, violation de la loi, and detoumement de pouvoir (Brown and Bell 1998: 239).

The explosion of fundamental-rights doctrines accordingly challenges the con-

ceptual and doctrinal framework of the ECJ, which was derived directly from the

Conseil d'Etat. As might be expected, the ECJ has met this challenge with some

resistance: it only accepted to develop a fundamental-rights jurisprudence when

faced with mounting institutional threats. These pressures came from at least hvo

directions. Classic EU analyses stress the first: pressure exerted by domestic constitu-

tional courts, especially the German Federal Constitutional Court (FCC). The FCC

threatened to protect the fundamental rights of German citizens against encroach-

ment by the acts of the community institutions unless the community (and the

ECJ in particular) took on this task in a manner substantially similar to German

21 The struggle for institutional, intellectual, and doctrinal leadership of the European high courts is on

the verge of entering a new and potentially explosive phase: when the EU accedes to the European

Convention system, the ECJ will suddenly become directly subject to the ECHR's jurisdiction. See

infra Note 27 and accompanying text.

licial Dynamics of the French and European Fundamental Rights Revolution 305

stitutional protections.22 Our analysis highlights a second, European motivation

iplements this domestic pressure: the ECJ was also increasingly threatened

the ECHR, whose evermore bold and influential fundamental rights analyses of

imental action challenged its own legal ity-based approach.23

Pushed from both directions, the ECJ had little tactical choice but to hop onto

the fundamental-rights bandwagon, regardless of how unsettling this may have been

to its traditional prism. Tellingly, however, it did so in a manner that faithfully repro-

duced the Conseil d'Etat's approach: it started to develop its own fundamental-rights

rudence under the rubric of "general principles of [European] Community

law."24 This solution - since enshrined in Article 6-2 of the Treaty of Amsterdam -

the Conseil d'Etat's creative elaboration of such "general principles of

law" under the rubric of the cardinal French administrative notion of legality.2?

It also offers the same basic tactical advantage: it allows the ECJ to partake of, be

responsive to, and influence the existing fundamental-rights regimes (both domestic

and European), while also establishing the legal independence of the ECJ and its

fundamental-rights doctrines.

These startlingly vivid institutional, conceptual, and doctrinal parallels between

the ECJ and the Conseil d'Etat support several conclusions. At the most general, sys-

temic level, the European courts are gradually organizing themselves as a complexly

integrated judicial order, and they are doing so along recognizable domestic lines.

Not only do they replicate the basic institutional division behveen fundamental-

rights-oriented constitutional" courts (the ECHR playing the role of the Constitu-

tional Council) and legality-oriented "administrative" courts (the ECJ playing the

role of the Conseil d'Etat), but they are reproducing the tensions, motivations, and

solutions that characterize these domestic judicial orders. This confirms our analysis

of the fundamental-rights dynamics that have been operating at the national level;

justifies its transposition to the supranational level; and illustrates its relevance to

22 When the ECJ did so, the FCC suspended its own review. Re Wiinsche Handelsgesellschaft (Solange JJ), Judgment of Oct. 22,1986, (1987) T, CMLRzz;, 265. See also Brunnerv. European Union Treaty,

(1994) i CMLR 57, 89 BverfGE 155. 23 The centrality of the ECHR and its rights-based analyses has since been formalized in the EU

legal order. The Charter of Fundamental Rights of the European Union, which took effect in 2000,

established that the EU's institutions (including the ECJ) would respect fundamental rights "as they result," inter alia, from the European Convention on Human Rights and "the case-law of the

[ECHR]." It even specified that insofar as it "contains rights which correspond to rights guaranteed

by the [European Convention], the meaning and scope of those rights shall be the same as those laid

down by the said Convention." Charter of Fundamental Rights of the European Union, Article 52(3).

24 These general principles were to be inspired by the "constitutional traditions common to the Member

States" and the European Convention on Human Rights. See, e.g., Hauer v. Land Rheinland-Pfalz,

Case 44/79, December 13,1979, (1979) ECR 3727. 25 Developed most aggressively and expansively in the post-War years, these general principles have

permitted the Conseil to crystallize a set of overarching principles of legality that ground the French

state and its actions. See conclusions of CDG Fournier in Syndicat general des mgenieurs-conseils,

June 26,1959, Rec. Lebon 364; Conseil d'Etat 5 mai 1944 Dame Trompier-Gravier and CE 26.10.1945,

Aramu, Leb. 213.

306 Mitchel de S.-O.-l'E. Lasser licial Dynamics of the French and European Fundamental Rights Revolution 307

the increasingly porous and interactive environment at the intersection of these

domains.

The Article 6-1 fair trial litigation reveals quite clearly the operation of

dynamics. In theory, this litigation should not have been a bone of contenti,

behveen the ECJ and ECHR: the former is not subject to the latter's jurisdiction's

The litigation has nonetheless spilled over into the Euro-European realm, bee.

the decision-making process of the ECJ is so clearly patterned on the French model.2?

Litigants have therefore sought to challenge unfavorable ECJ judgments on th<

grounds that they were the product of similarly flawed judicial procedures. In fact.

this procedural link between the ECJ and the French high courts has been stressed

by almost all parties involved as a means to exert leverage on one another.

These Euro-European Article 6-1 debates have played out in multiple venues.

First, the ECHR has explicitly and repeatedly addressed the ECJ's judicial decision-

making processes in litigation concerning similar practices employed by the French

and Belgian Supreme Courts. ECHR majority decisions have worked hard to

distinguish ECJ from national Supreme Court decision-making practices: it would

be highly impolitic for the ECHR to condemn the practices deployed by its august

European colleague.28 Dissenting ECHR judges have, to the contrary, stressed

Franco-ECJ parallels as a means to critique the majority's developing jurisprudence

in a (largely unsuccessful) attempt to shield French-style supreme courts from

ECHR condemnation.29 Indeed, the national high courts under review have done

the same, both in domestic litigation and when defending themselves before the

ECHR.30

Second, the Article 6-1 litigation has also surfaced before the ECJ itself. In effect,

the ECHR's 6-1 jurisprudence has all but forced the ECJ to defend its traditional

judicial decision-making procedures against the claim that they violate the funda-

mental right to a fair trial in a manner comparable to those of the French, Dutch,

Belgian, and Portuguese Supreme Courts. In Emesa Sugar v. Aruba, the ECJ took

matters in hand by issuing an order that held explicitly that its procedures do not

run afoul affair trial guarantees.31

26 The EU has not yet acceded to the European Convention on Human Rights, as the ECJ ruled in 1996

that accession was outside the scope of EU's competences. See Accession by the Communities to the

European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion

2/94, 1996 E.C.R. I-i759> at para- 35- Accession has been further delayed by the failure to ratify the

proposed Constitutional Treaty. The Lisbon Reform Treaty calls for such accession. See Article 6

TEU.

rl For more on these procedural parallels and their limits, see Lasser (2009: Chapters 4 and 7).

28 See, e.g., Defcourt v. Belgium, u Eur. Ct. H.R. (Ser. A) i (1970), para. 30; Kress at para. 52, 86.

29 See dissenting opinions of Judge Van Compernolle and Judges Golcuklii, Matscher, and Pettiti in

Vermeulen v. Belgium, 1996-! Eur. Ct. H.R. 224 (1996); Reinhardt, Dissenting Opinion of Judge De

Meyer, at No. 13; Partly dissenting opinion of Judges Wildhaber, Costa, Pastor Ridruejo, Kuris, Birsan,

Botoucharova, and Ugrekhelidze in Kress, at para. 11.

3° See, e.g., Kress at para. 62.

y See Order of the Court in Case 17/98, Emesa Sugar (Free Zone) NVv. Aruba, 2000 E.R.C. 1-665.

This exchange demonstrates a number of key points. First, the ECHR has been

;rting significant pressure on the ECJ through the development of its fundamental-

doctrines, although it does not formally exercise jurisdiction over its sister

court- Second, the ECJ has understood that it has no choice but to meet this

^gllenge directly on its own fundamental-rights terms: it must make an effort

to seize control of the fundamental-rights analysis insofar as possible, lest it be

at the mercy of less favorable interpretations. Third, the ECJ is nonetheless in a

disadvantageous position in these exchanges. Fundamental-rights analysis is not the

traditional source of its jurisdictional or doctrinal power. Worse, the ECJ finds itself

in a defensive posture, as it must fend off the suggestion that its own decision-

making procedures violate the fundamental right to a fair trial. This puts the ECJ in

the awkward and seemingly retrograde position of fighting a rearguard action against

fundamental-rights protections.

The ECJ has nonetheless held firm, claiming the authority to make its own

fundamental-rights determinations. Relying on its self-availed - and treaty- and

charter-ratified - power to interpret fundamental-rights norms as "general principles

of law," it has even taken the dramatic tack of challenging the ECHR overtly: by

explicitly refusing to follow the Strasbourg Court's Article 6-1 fair trial jurisprudence,

the ECJ is in effect challenging the ECHR's leadership in the fundamental-rights

arena.

Tellingly, the ECJ could hardly have picked less congenial ground on which

to make its stand. It was the very institution charged with having, violated the

fundamental-rights norms in question; its analysis was therefore inescapably self-

interested, if not self-serving. Worse, the ECJ was effectively forced to frame its

self-defense as a restrictive, rather than an expansive, fundamental-rights interpreta-

tion: the ECJ had to conclude that the litigants' fair trial rights did not extend to the

decision-making procedures at issue. The ECJ's very willingness to stand its ground

under such unfavorable circumstances demonstrates the severity of the threat posed

by the ECHR's Article 6-1 jurisprudence: backed against the wall, the ECJ had to

claim fundamental-rights authority more forcefully, lest the ECHR dominate the

field completely.

Equally telling, the ECJ defended its decision-making procedures in terms that

unabashedly reproduced those put forward two years earlier by the French Con-

seil d'Etat.32 By closing ranks in this manner, the ECJ presented the ECHR with

a threateningly unified front against its developing jurisprudence. In so doing, the

EC] effectively recognized that it and the Conseil d'Etat are structurally, intellectu-

ally, doctrinally, and procedurally kindred institutions; the rise of the fundamental-

rights idiom and fundamental-rights courts subjects both courts to deeply analogous

pressures. These structural parallels confirm that the European courts are indeed

32 See Id., drawing heavily from Esclatine, Conseil d'Etat, July 29, 1998, D. 1999, at Jur. 85, concl.

Chauvaux,at 89.

308 Mitchel de S.-O.-l'E. Lasser

organizing themselves into an integrated judicial order along recognizable domp^;.

lines.

SUBSTANTIVE CONCLUSIONS AND METHODOLOGICAL CAVEATS

The French and European judiciaries are both in the midst of a major constitntn

moment. On its side, the French judicial system is rapidly turning itself eve

completely and explicitly into a fundamental-rights-based regime. This has tris

gered a major realignment of French judicial doctrines, procedures, jurisdictions.

and ideologies. All French courts now interpret constitutional rights when han-

dling litigation, even if formal constitutional review has traditionally been vested

solely in the Constitutional Council. When combined with the establishment of

fundamental-rights review of European derivation, the French judicial order has

shifted ever further from its traditional package ofrepublican-inspired attributes.

The French constitutional amendments of July 2008 offer the latest and clear-

est indication of this transformation. The addition of Article 61-1 opens the door

for a posteriori concrete review of legislation on behalf of individuals: it allows

references to be made by the Cour de Cassation and Conseil d'Etat to the Consti-

tutional Council in ongoing litigation. This means, by definition, that all judicial

(and/or quasi-judicial) branches of the French legal order are suddenly and explicitly

important players in triggering judicial review of legislative norms on constitutional

fundamental-rights grounds. One can only assume that this represents the death

knell of the general will as classically defined.

On its side, the European courts are replicating ever-more faithfully the structure

and logic of domestic legal orders such as the French. The ECJ and ECHR,

although rooted in different treaty regimes and doctrinal logics, are gradually orga-

nizing themselves into an integrated judicial order. They have not only reproduced

the institutional ethos and conceptual framework of the Conseil d'Etat and the

Constitutional Council, respectively, but also the tensions between them. Indeed,

they have even gone so far as to elaborate the same doctrinal mechanism for bridging

between their legality and fundamental-rights perspectives: general principles of law.

The full extent of these emerging parallels is only underlined by the ECJ's defense of

its decision-making procedures in terms that explicitly parrot those authored by the

Conseil d'Etat. What remains to be seen, however, is whether the EU's ratification

of the Lisbon Reform Treaty, which should bring the ECJ under the fundamental-

rights jurisdiction of the ECHR, will significantly alter this familiar institutional

balance.

The complex and ongoing transformations occurring at the intersection of the

French and European judicial systems therefore pose an analytic conundrum. Are

the French and European judicial systems in the process of moving toward a unified

fundamental-rights regime, led most likely by the key fundamental-rights court at

the European level, the ECHR? Or do their complex and shifting interinstitutional

{icial Dynamics of the French and European Fundamental Rights Revolution 309

/s the plethora of domestic and supranational courts to govern their respec-

domains as they all converge on - and compete over - an increasingly common

mdamental-rights idiom? This problem of historical perspective is compounded by

what might be termed a problem of systemic perspective. The interrelated conver-

nce of all of these domestic and European courts on the fundamental-rights idiom

has made it increasingly difficult to treat the domestic and supranational judicial

orders as truly external to each other.

The Article 6-1 fair trial litigation demonstrates this phenomenon quite elegantly.

^/hen the Cour de Cassation interpreted the ECHR's jurisprudence so expansively as

to require a large-scale reconstruction of its own decision-making processes, it all but

forced the ECHR to adopt this interpretation of European law and impose it on the

Conseil d'Etat. It is not at all clear whether this cycle of French and European judicial

interaction is best understood as an example of: i) external European (ECHR)

the French courts; 2) internal (Cour de Cassation) motivations regarding

its relations to the Conseil d'Etat; or 3) reverse (Cour de Cassation) pressure on the

ECHR. My own inclination is to understand it as an example of all three at once,

not only because the pressures and motivations operate simultaneously on all fronts,

but also because the more one knows what one is looking at, the less and less clear it

becomes whether, for example, the Cour de Cassation can best be described in such

instances as a French or European legal actor. This suggests a fourth interpretation;

namely, that the Cour de Cassation was internally motivated - as one European

court - to exert interpretive pressure on another - the ECHR. In this complex and

shifting legal environment, domestic institutions such as the Cour de Cassation act

as both the subjects and objects of European law, constructing Europe and realizing

European law even as they reformulate French legal traditions and rework French

legal institutions (Lasser 2009).

The dramatic emergence of fundamental rights manifests this complexly interac-

tive and fluid state of affairs. Fundamental-rights analysis crossed traditional jurisdic-

tional boundaries, linking together a series of courts that had previously operated in

relatively distinct legal and political spheres. This doctrinal linkage not only provided

the opportunity for interinstitutional communication in common terms, but also trig-

gered intense and ongoing interinstitutional competition: each of the high domestic

and European courts was - and still is - deeply invested in mastering the high ground

of fundamental rights. Finally, as the highest ranking and most readily applicable

norms in the emerging legal regime, fundamental rights have become the privileged

and ubiquitous medium for engaging in these charged interinstitutional struggles.

REFERENCES

Bell, John 1992. French Constitutional Law. Oxford: Clarendon Press.

Bell, John 2001. French Legal Cultures. London: Butterworths.

Bourdieu, Pierre (Clough, trans.) 1996. The State Nobility: Elite Schools in the Field of Power.

Stanford: Stanford University Press.

310 Mitchel de S.-O.-l'E. Lasser

Brown, L. Neville and John Bell 1998. French Administrative Law. Oxford: Clarendon p,

Caruso, Daniela 2004. "Private Law and Public Stakes in European Integration: The C;

Property/ European Law Journal 6: 751.

Carapon, Antoine and loannis Papadopoulos 2004. Juger en Amerique et en France:

juridique frangaise et common law. Paris: Odile Jacob.

Hazareesingh, Sudhir 1994. Political Traditions in Modem France. New York, Oxford:

University Press.

Kahn-Freund, Claudine Levy, and Bernard Rudden 1991. A Source-Book on French Law

Oxford: Clarendon Press.

Lasser, Mitchel 2005. Judicial Deliberations: A Comparative Analysis of Judicial Transpare

and Legitimacy. Oxford: Oxford University Press.

Lasser, Mitchel 2009. Judicial Transformations: The Rights Revolution in the Courts of France

and Europe. Oxford: Oxford University Press.

Portalis, Jean-Etienne-Marie 1799. "Discours pr6liminaire, prononc6 Ie 24 thermidor an VIII."

translated and reprinted in Kahn-Freund, et al. 1991, pp. 233-235.

Rousseau, Jean-Jacques (Dunne, trans.) 2002. The Social Contract and the First and Second

Discourses. New Haven and London: Yale University Press.

Suleiman, Ezra 1974. Politics, Power, and Bureaucracy in France: The Administrative Elite.

Princeton: Princeton University Press.

Weiler, Joseph 1981. "The Community System: The Dual Character of Supranationalism,"

Yearbook of European Law i: 268.

Weiler, Joseph 1994. "A Quiet Revolution: The European Court and its Interlocutors," Com-

parative Political Studies 26: 510.

12

Constitutional Courts as Bulwarks of Secularism

Ran Hirschl*

One of the fascinating but seldom-explored phenomena in comparative constitu-

tional law is the growing reliance on constitutional courts in the non-secular world

to block the spread of religiosity or advance a relatively universalist interpretation

of sacred texts. The American constitutional system has successfully maintained a

stable secular order in one of the most religious societies in the West. Although

the specter of religiosity is haunting Europe once again, European national high

courts, from Germany to Britain to France, assumed the role of guardians of sec-

ularism against the perceived threat to the concept of a religiously neutral public

sphere.' Likewise, Turkey's adherence to a strict separation of religion and state (at

least until the recent constitutional amendments) has allowed the Turkish Consti-

hitional Court to exclude religious practices, parties, and policies from the purview

of Turkey's political sphere. The Supreme Court of India has drawn on the "basic

structure" doctrine to maintain and advocate a secularist vision of the Indian Consti-

tution amid a markedly religious setting and increased political presence of Hindu

and Muslim religiosity.2 Its jurisprudence on personal-status law has sounded a clear

voice for uniformity and standardization in that domain. In short, despite the many

pertinent differences, the constitutional jurisprudence of countries that adhere to a

strict separation of religion and state reveals a clear secularist tendency and vision of

religion as confined to the private sphere.

A notably harder challenge to the constitutional containment of religion is posed

by constitutional orders that defy the Franco-American ideal of separating religion

* Canada Research Chair, Professor of Political Science & Law, University of Toronto. An earlier

draft was presented at the Sawyer Seminar Plenary Conference, held at the University of California,

Berkeley in November 2008.1 thank the volume editors and participants for their helpful comments

and suggestions.

National high courts in Germany (e.g., the Ludin case, 2003), Britain (Shabina Begum, 2006), and

France (the Conseil d'Etat ruling in the Faiza M case, 2008) have addressed the hotly contested

question of differentiated citizenship and wearing of religious attire in the public education system.

2 See, e.g., S. R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.