International Institutions and Socialization in Europe (International Organization)
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Robin Markwica. Hugo Meijer and Marco Wyss editors. Hugo Meijer. Hugo Meijer editor. William Phelan. Ulrich Krotz. History and Foreign Policy in France and Germany. Michal Onderco. Fabrizio Coticchia and Francesco N. Ulrich Krotz and Joachim Schild. Abbott, Burkard Eberlein, and Errol Meidinger, eds.
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The National Interest , 26 November Of course, answers to these questions may vary widely and may not accord with the actual role of a judge. If we are interested in the development of a possible European judicial culture, we need to understand how these how-to-do-what ideal-typical legal concepts in judicial cultures are deployed, and, ultimately, sensitive to change.
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Importantly, what judges, the judiciary and other voices in society think is the role of a judge, or ought to be the role of a judge, are not merely descriptive answers; they are prescriptive as well. Since the s, scholars, influenced by the work of sociologists, social psychologists and anthropologists, have applied the role concept to the judicial branch. The research agenda proposed here limits the study of judicial role perceptions to a collection of legal ideas that, at a given time and place, shape perceptions of the judicial role.
As already indicated, judges do not operate necessarily at the level of these ideal-typical collections of ideas, but the analysis of judicial role perceptions shows how judges in the past and present found themselves torn between different, incompatible legal ideas and wove their way between them. At the same time, this also means that newly invented and popular judicial role perceptions carry the power to change judicial culture s in distinctive ways and, at the same time, change the position and role of courts and individual judges.
These new judicial role perceptions can change opinions about judicial review, but also such things as the view that judicial law making is possible and legitimate. Even within a single legal system, there need not be complete normative consensus regarding judicial role perceptions. Moreover, these ideas can change over time. Within the French judicial culture, for example, the eighteenth century legacy that glorified the legislator and distrusted the judge never totally faded away and still shapes French judicial role perceptions.
The presented notion should not be misunderstood: the approach of the concept of judicial role perceptions implies nothing about the preferences of the researcher. Rather it is a neutral device to illuminate changing, questioned or even partly abandoned judicial ideas. But how can we track changing perceptions of what it meant to be a judge in a particular judicial culture? And to what extent can judicial role perceptions contribute concretely to the understanding of the legal dimension of judicial cultures?
To begin with the last question, by addressing the world of judicial role perceptions, scholars are able to compare the legal dimensions of judicial cultures from a deeper and broader perspective. Judicial role perceptions are not only visible in all judicial cultures, but also in all periods. Distinct as legal approaches are in different judicial cultures, they are all embodying and expressing judicial role perceptions. A judicial role perceptions research agenda, thus, puts forward a type of analysis that differs from traditional legal scholarship by stating that there is a level of abstraction at which legal dimensions of several judicial cultures can be formally compared.
This is at the level of the underlying legal ideas used. In doing so, it is possible to show that legal ideas themselves can be different, but the underlying judicial role perceptions in which these rules are expressed are not. If we do not make use of such a prism, we will only find differences and no commonalities. As an example, a focus on judicial role perceptions can enable demonstrating that judicial cultures may involve the transmission of judicial role perceptions from one court to another. Those employing the vocabulary of judicial role perceptions, however, need to pay careful attention to questions of demarcation.
Firstly, in order to be able to engage in analysing judicial role perceptions, it is necessary to solve some methodological problems. What sources would one need in order to study ideal-typical legal ideas that shape the role of the judge within a judicial culture? What would one need to look for in such sources?
And at what point in time would one start to research judicial role perceptions? In the s Jerzy Wroblewski coined this concept to refer to a field of study concerned with the collection of values that define the general direction and the attitude of courts to the law in force. These values refer to modes of decision-making rather than to the more general normative and professional underpinning for judicial conduct.
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This last theme connects clearly with the concept of judicial role perceptions as a model embodying ideal-typical legal ideas that shape the role of the judge. Nonetheless, the subject gives rise to a complex methodological debate. He pointed out that judicial ideology can be found not only where we would expect it — in the official written output of judges and legislators — but also where we would perhaps not expect it: in academic teachings, political rhetoric, judicial self-perceptions, writings of the legal community and the prevailing opinions of society as a whole.
Following these lines of inquiry, the approach advanced in this article is to bridge both perspectives by focussing on three concrete categories of sources in which the construction and transformation of judicial role perceptions have taken place. These categories of sources are: 1 case law; 2 legislation; and 3 academic scholarship. These categories of sources are not abstract intellectual entities, but concern the voices of certain groups of people within a judicial culture expressing particular judicial role perceptions.
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The ground-breaking works of legal historian Raoul van Caenegem have demonstrated how various European countries have seen the control of the law pass through various hands, those of the judiciary, the legislature, or the law schools. This is not to say that there were periods or countries where one of these types of sources controlled judicial role perceptions exclusively; there has always been some case law, some legislation and some writing about the role of the judge.
The corpus of knowledge that legal scholars have created and cultivated is part of judicial culture. Judicial role perceptions are sometimes literally mentioned in the works produced by legal scholars, while at other times they remain implicit and should be extracted from the texts. To make this idea more concrete, references to case law and practices of foreign or international courts sometimes function as a tool for explaining, promoting or defending a particular judicial role. As is now routinely accepted, socio-historical analyses can be especially useful for understanding how legal elements came into being or evolved accidentally or rationally.
In short, research on judicial role perceptions has the potential of opening up new perspectives. It can trace and compare judicial cultures through time and across legal borders. In order to analyse judicial role perceptions in the broader framework of judicial cultures it is necessary to select areas where such perceptions crystallise and are more visible than usual. Ideological moments capture the intellectual world of a time and place. These moments are shaped by the dominant questions that engage a generation and include the language of the debate, the competing solutions and actors.
These decisions affect judicial cultures. They offer an opportunity to debate, reconstruct and redefine existing legal ideas in a manner that changes the role perceptions of judges.
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The already mentioned Simmenthal case, for example, not only gave ordinary national courts the mandate to set aside conflicting national law inconsistent with EU law, but also placed constitutional courts at the margins of the everyday application of EU law. As a consequence, this decision caused a debate over the judicial role of constitutional courts in the EU. They are able to reshape judicial role perceptions within courts, politics, scholarship and the media. In this way, they rework the very nature of judicial cultures.
Yet, trust has been recognised in discourse as crucial for the success of judicial cooperation and harmonisation. This leaves a gap between generalised importance of trust in scholarship as regards individual or group relations and the vague and often assumed notion of trust as applied to the judiciary in certain contexts. The European Commission points to understanding and mutual trust as crucial for mutual recognition, necessary to furthering cooperation between judges and other institutional actors in the European legal area.
Trust is a concept widely studied and contested across many disciplines, including political science, sociology, cultural anthropology, economics and psychology. However, the study of judicial trust is slowly expanding, and authors have put forward various working definitions in their study of judicial trust.
If we focus on the trust that can exist s between judges as individuals, we might broaden the definition so as to better encapsulate trust in any professional scenario. For example: judicial trust is a subjective belief comprising the accepted vulnerability of a judge based on positive expectations of the intentions or actions of another judge.
From this point of departure, some initial questions arise. What structural aspects of institutions help to promote trust?
What effect can the nature of initiatives — top-down or bottom-up — have in realising trust-building efforts? What role does networking or training on EU law and the legal systems of other Member States play in building, maintaining or dissolving trust between judges? From a broader, European-level perspective, looking at judicial trust is interesting in at least two areas: 1 trust between individual judges who interact with one another in a transnational environment — a professional trust between two judges; and 2 trust between judges as developed through interaction in a formal institutional mechanism.
The second comes, among others, from interaction within the institutional system of the Court, i. The operationalisation of the concept of judicial trust in an analysis of European judicial culture, similar to the other dimensions of this research, first requires location of potential sources of trust formation among judges in the EU and then a research design that facilitates investigation of the concept through legal analysis as well as the personal and professional insights of judges themselves.
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Where do judges interact or engage in dialogue that could build trust? In line with the view that cooperation can lead to trust, as opposed to trust primarily preceding cooperation, an analysis of trust might start with potential points of judicial interaction. For a broad overview of how trust-building affects the harmonisation of European judicial culture, we can look to three prominent sources of and mechanisms for promoting transnational dialogue between judges, information-sharing and creating greater understanding of EU law: judicial networks, judicial training programmes and the case law of the CJEU.
While analysis of judicial trust has been carried out in the national context or in relation to EU Courts, there is thus far lack of an overview that maps the formation or presence of judicial trust through several far-reaching informal structures where judges directly interact. Research pertaining to a broad overview of trust among judges still necessitates several choices be made in regard to analysing all three parts.
First, judicial networks increase personal contact between judges and formal connections between legal systems, and, in theory, may contribute significantly over time to the harmonisation of European judicial cultures.
They may be seen as both a cause and consequence of trust among judges. An analysis of different types of interaction between judges from different Member States and European Courts is, therefore, interesting to examine in terms of the institutional autonomy of the judiciary and the individual autonomy of judges, both of which are important for judicial independence. Such a study could also highlight the nature and outputs of both top-down and bottom-up initiatives of judicial networking in Europe.