Thursday, September 16, 2004
(PLEASE DISREGARD THIS - I USE THIS PART OF THE SITE AS A TEMPORARY BACK-UP FOR MY TERM PAPERS)
I. The American legal culture: property rights and the sources of law
I. a.- A brief historical account of the early English common law
Most legal systems today recognize a number of different sources of law. In the Dutch system, for example, enacted law –that is, law created by a legislative body- is usually placed at the top of the hierarchy. As in most civil law jurisdictions, case law and customary law play a secondary role. According to Sanne Taekama, “…Within the category of enacted law, there is a clear hierarchy of sources … treaties precede the Constitution, which precedes Acts of Parliament, which precede other government regulations.” (1)
This stands in sharp contrast to American law, which belongs to the legal family of the English common law. Here the hierarchy is reversed: non-codified case law usually finds itself at the top. Indeed, enacted law was originally meant to “operate on the principles of the common law.” (2) Understanding this hierarchical structure –with lex non scripta at the top- is one of the keys to unveil the apparent mystery of the American legal culture.
A brief historical account
As Zweigert and Koetz have noted, “More than any other legal system, English law demands a study of its historical origins.”(3) Some degree of knowledge about the early development of the English common law is required if one whishes to capture the essence of the modern American legal culture.
The most recent account of the birth of the English common law is David Carpenter’s The Struggle for Mastery. Britain 1066-1284 (London: Penguin, 2003.) The development of what Carpenter calls Britain’s “uniquely powerful institutions” is inextricably linked to the fact that England was ruled, from 1154 on, by the Angevin or Plantagenet dynasty.
As kings of England, Henry II and his sons Richard the Lionheart and John “Lackland” were also dukes of Normandy, and they ruled Anjou and Aquitaine as well. That meant one sure thing: perpetual war with the French King! At the risk of over-simplifying Carpenter’s account, we can say that the legal system known as English common law was devised out of Henry II’s need to create an administrative framework that would enable him to keep his power basis in England while simultaneously waging war against the French king.
The key initial steps were taken between 1166 and 1215. It is commonly assumed that the institution of jury trial was extended to civil cases around the year 1166. This was a crucial step, for it crystallized a political alliance of sorts between the crown and the impoverished gentry. With juries manned by members of the gentry, property disputes between members of the gentry and the rich land-owners who contested the king’s power (the so-called barons) were mostly settled in favor of the former.
The form of procedure was simple and cheap. A form called writ would suffice to start a legal action in a property dispute. The verdict would then be given by a local jury of “twelve free and law-worhty men” before the king’s justices. A writ would cost only 6 pennies, a sum that was “within the reach of the humblest freeman.” Thus from the outset, the Angevin legal system was a highly formalistic one. Legal action in royal courts could only be undertaken by means of a writ covering a specific offense. (4)
I. b.- The American legal culture: the sources of law
This brief historical account of the early English common law shows the importance of “the idea of utility” (Carpenter.) Legal writers would discuss “things not theoretical but useful: non subtilia sed utilia.” Already, there was a premium on law, as opposed to justice.
But there is an additional –and more substantial- difference between the early English common law and the systems that were later implemented in France and in Germany in accordance with Roman law. It is about the sources of law - and it provides much of the material needed to understand the disparities between current legal cultures.
Law as “external” to the sovereign body
Given the constant absence of the Angevin kings (they were out of England most of the time, fighting the French in Normandy or crusading against Muslims), a set of criteria had to be devised. Which cases necessitated the issuance of new writs? What punishment to apply? If these absentee kings could not be relied upon to act as the source of law (as in Roman law), something else had to be found.
That is probably how the doctrine of precedent came into being in England. In his fascinating account of the English common law in A History of the English-Speaking Peoples, Winston S. Churchill writes:
“The law was already there, in the customs of the land, and it was only a matter of discovering it by diligent study and comparison of recorded decisions in earlier cases and applying it to the particular dispute before the court… Here was precedent … popularly known as case law.” (5)
In the end, as we know, the Angevin kings created a system that proved too successful for their own good. Once the barons forced King John to sign Magna Carta in 1215, the principle that “the king should be under God and the law” became a well-established one. Rex non debet esse sub hominess sed sub Deo et lege! (6).
“The law”, writes Churchill, “flows from the people, and is not given by the King.” This, wrote the English statesman in 1939, is a principle “that endures to this day.” As is emphasizing this point, Article 39 of Magna Carta –reformulated by James Madison in the American Bill of Rights- sets forth the idea that law is external to the king.
These developments were taking place well before Parliament began to exist, let alone to legislate. Indeed, according to Norman Cantor, there was a “reluctance to accept the idea of positive legislation.” To any European intellectual trained in the enlightened democratic republican tradition –which sees legislation as the sole source of the law- these views are highly surprising.
Summing up: property rights and the English common law tradition
A proper understanding of the principles underlying the American legal culture starts with the early history of the English common law. This tradition formed an essential part of the American colonists’ toolkit. If anything, the American Revolution went decidedly further down that road.
According to historian Ralph Turner, when Americans “put into practice Magna Carta’s fundamental lesson of limitations on a government’s power”, they went “further” than the old charter. Thus, the first amendment prohibits Congress from legislating about the establishment of an official religion, and about the abridgement of freedom of speech or the press. (7) And as Tocqueville famously observed, Americans converted the old aristocratic English jury system into a powerful machine of popular representation.
What is now called the “Anglo-American legal culture” emerged out of a very peculiar historical –and geographical- context. The Angevin kings had devised a legal system designed to protect the property rights of the gentry, their political ally in the struggle against the barons. They did so to keep their power base in England while waging war in the continent. Neither the French nor the German kings faced such an intricate strategic situation. (8)
In due time, the British Parliament saw fit to enact sweeping reforms that reorganized the courts and modernized the common law by abolishing forms of action. Meanwhile, in the United States, case law lost part of its dominant position due to the growth of legislation. Thus, the gap between the Anglo-American and the Continental European legal traditions was reduced.
Yet the fact remains, as Cantor timely reminds us, that “the whole of English constitutional history is an appendix to the land laws.” A constitution based on land laws? Indeed. The Anglo-American legal system is a set of institutions originally designed to protect the stability of private property rights. One needs to fully grasp this fact to understand why concepts and values such as sovereignty (as a source of law), equality, dignity, and even “justice” play only a minor role in the Anglo-American legal culture (9).
II. Europe Receives the American Legal Culture
II. a.- The European Court of Justice embraces the doctrine of precedent
The Court of Justice of the European Communities, better known as the European Court of Justice (ECJ), was established in Luxemburg to adjudicate on matters of European law. It is sometimes called the “supreme court of the European Union.” In 2000, the ECJ stunned the judicial establishment when it decided to embrace stare decisis, the doctrine of precedent. (10)
Up to then, the Court had based its procedures on a mandate from Justinian’s code: "Cases should be decided on the basis of laws, not precedents.” In other words, judicial precedent was not considered a formal source of law. In an often-cited 1962 case, Advocate-General Lagrange had argued that “the Court should accept the French strict view of Res Judicata, according to which no decision of any court can have regulatory effect for any one who was not party to the litigation” (11).
The entirely new position embracing stare decisis was put forward by the Court in a document issued in May 2004 to consolidate its rules:
“Where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the answer to such a question may be clearly deduced from existing case-law or where the answer to the question admits of no reasonable doubt, the Court may, after informing the court or tribunal which referred the question to it, … give its decision by reasoned order in which, if appropriate, reference is made to its previous judgment or to the relevant case-law.” (emphasis added.) (12)
In an essay devoted to this particular incident, Hans Baade calls our attention to the fact that “precedent of the Court of Justice of the European Union … is binding on French and German courts at all levels.” Thus he concludes:
“… the emergence of the very notion of judicial precedent in the case-law of these two European courts [the European Court of Justice and the Strasbourg-based European Court of Human Rights] shows that stare decisis is in the ascendant in civil-law countries.” (13)
Why apply precedents?
Stare decisis is not officially recognized in Belgium, France, Germany, Italy or the Netherlands, but high court decisions in these nations do influence lower courts. In the Netherlands, the Supreme Court will in practice “usually not overrule its own previous decisions.” (14) But why apply precedents at all?
Power is a possible explanation. Professor Jonathan Miller of Southwestern University has outlined a model of the “independent charismatic authority of the judiciary” based on Max Weber’s work on law and economics. (15) According to Miller, an independent supreme court needs to apply stare decisis to its own rulings in order to acquire prestige and “charismatic authority.” Paradoxically, this power may then be used to deviate from precedent in a “charismatic decision” –for example, on abortion or gun control. To rebuild its prestige, the court then initiates a new (and long) period of respect for its own rulings.
Another concern is the rule of law. Stare decisis is seen as a way to “foster stability in the law” and to “engender reliance”, as Justice Kennedy ruled when presenting the opinion of the US Supreme Court in ITEL v. Joe Huddleston in 1993. More recently, however, economic explanations seem to have taken the upper hand. Legal counsel Patti Waldmeir, in a series of newspaper articles on the reach of American law, nails down the usual suspect: globalisation. Says Waldmeir:
“… as economies become globalised, do does the law .. Globalisation was the biggest theme of the last US Supreme Court term, a term dominated by cases that dramatized the interdependence of economies around the world – and the cultural and legal conflicts that arise.” (16)
Following that trail, I came across an intriguing connection between stare decisis and business competitiveness. Comparing case law in the United States and enacted law in civil law countries, Kevin Johnson argues that businesses can better assess legal risk when stare decisis enables courts to develop and clarify previously enacted law (17).
This, says Johnson, may have important consequences for companies. Before deciding on a project, any business needs to assess a number of risks: country risk, currency risk, interest rate risk, market risk – and legal risk. The more relevant information there is about each of these risks, the better a company can prepare.
In the particular case of legal risk, court opinions are a precious source of information. Johnson shows how American courts –drawing on the Civil Rights Act of 1964- have interpreted (or “constructed”) a body of sexual harassment law that has attained, over a sixteen-year span covering five major cases, a level of precision that no positive legislation can match. All of the likeliest scenarios of sexual harassment have been precisely defined and catalogued, “without involving the legislative process.”
This is what judges do when their opinions carry the weight of stare decisis. As they shape the law, step by step, court opinions provide crucial information that can be cheaply obtained even by small businesses, which normally lack the legal resources of big corporations. Thus, concludes Johnson, businesses can reduce costs by precisely tailoring the type of insurance they need to confront the issue of sexual harassment. The same process is valid “for virtually any legal issue.”
Stare decisis and economic competitiveness
Did the European Court of Justice have such ideas in mind when it decided to embrace stare decisis? Quite possibly. In 2000, the issue of European competitiveness was all the rage. In March 2000, the EU Heads of States and Governments agreed to make the EU "the most competitive and dynamic knowledge-driven economy by 2010" (the so-called Lisbon Agenda.)
Checking the most recent “World Competitiveness Scoreboard” from the Lausanne-based IMD business school, which lists sixty countries according to their level of competitiveness, one finds some interesting results (18). Among the ten most competitive countries, the first four are common-law jurisdictions applying stare decisis: the United States, Singapore, Canada, and Australia. Two more among the “top-ten”, Hong Kong (7th in rank) and Ireland (10th), are also common-law jurisdictions.
The presence of three Nordic Countries –Iceland (5th), Denmark (7th) and Finland (8th)- is not all that surprising. On its website, the Royal Danish Ministry of Foreign Affairs informs that,
“From ancient times existing the contents of the law have … been determined by the courts by means of case law in areas where there is no legislation, and this still occurs, for instance especially in the law of compensation. In other legal systems, especially in countries with legal systems inspired by Anglo-Saxon law, common law, the courts have, however, a far greater law-creating function than in Denmark.” (emphasis added.)
The same principle applies to Icelandic and Finnish law: Nordic countries are not common law jurisdictions, but they do apply some measure of stare decisis. One the other hand, we note that the ten least competitive countries of the World Competitiveness Scoreboard (Russia, Italy, Philippines, Brazil, Romania, Turkey, Poland, Indonesia, Argentina and Venezuela) are all civil law jurisdictions with no stare decisis.
While much work needs to be done to arrive at more solid conclusions, preliminary evidence tends to suggest that a sound legal system endowed with stare decisis may indeed be one factor (among many others) explaining competitiveness. At a time when competitiveness is so eagerly sought, the Court’s reception of this doctrine should come as no surprise (19).
II. b.- France adopts plea bargaining
In yet another stunning development, France has adopted the legal procedure known as plea bargaining. From October 2004 on, a defendant can plead guilty in return for a reduction of the severity of the charges. If an agreement is reached, no trial takes place. Officially labeled “comparution sur reconnaissance préalable de culpabilité”, the new procedure –also known as “plaider coupable”- is the key tenet of the so-called loi Perben.
This piece of legislation has created unprecedented turmoil within the French legal establishment. Le Monde mentions a state of “ébullition du monde judiciaire” even as the new procedure threatens “to upset the judicial culture” (“bouleverser la culture judiciaire.”) (20)
The driving force behind the new scheme is the need to reduce costs. The French judicial administration, burdened by an ever increasing case-load, badly needs to shorten the length of proceedings and to improve its overall efficiency. However, at the heart of the plea bargaining controversy lies a sharp cultural divide centered on the trial itself, known as procès in French. The following section draws largely on Garapon and Papadopoulos’ thorough analysis of “trial v. procès” (21).
American trial or French procès? A cultural divide
The American trial, write Garapon and Papadopoulos, is a formalized event centered on the initial plea. In any criminal suit, the defendant must either plead “guilty”, “not guilty” or “no contest.” Only a “not guilty” plea leads to a full trial, also known as trial by jury or jury trial. The contrast with the procès is striking: here, the French État opens the proceedings with a public reading of the act of accusation.
The American trial is considered an “accusation-driven” contest between two parties, with the judge acting as an “umpire.” By contrast, the procès is an inquisitorial affair where the judge is sometimes deeply involved in the investigation phase. The very notion of truth is seen from different angles. In the American trial, the goal is not necessarily to attain a hypothetically absolute truth, but to persuade members of the jury by using “common sense” (and doing so orally.) Meanwhile, the French enquête spares no efforts to arrive at intellectually satisfactory conclusions –mostly in written form. Droit savant v. jury-oriented common sense: Descartes v. Locke!
Garapon and Papadopoulos point to the inherent injustice of the plea bargaining system. Plea bargaining, they say, is a threat to innocent people who may be tempted to enter an agreement if they feel they risk much higher penalties in a full trial. Risk-averse individuals may thus end up unjustly penalized. To Garapon and Papadopoulos, the indictment of innocent people is morally unacceptable and socially dangerous. It is one of the dangers of a “contractual” judicial culture.
Largely to quell such fears –“pour calmer les esprits”, says Le Monde- French authorities have opted for a very gradual introduction of plea bargaining. Their estimates for the first year call for approximately ten cases per day in Paris, and only seven cases per week in Toulouse. All in all, they foresee an initially modest 5% reduction in the number of procès. In the United States, according to figures quoted by Garapon and Papadopoulos, as much as 95% of trials in federal courts, and 94% of trials in state courts are avoided thanks to plea bargaining.
Such statistics must have caught the attention of M. Perben and his associates. According to Garapon and Papadopoulos, over-generous appeal rules mean that French judges are usually tempted to quickly dispatch initial cases, knowing that they are likely to encounter them once again at a higher level. This is not a recipe for a sound (or cheap) legal system. Data compiled by the Canadian think tank Fraser Institute clearly show France lagging behind other non-Mediterranean European countries when it comes to the impartiality of its courts of justice (22).
III. Is There a “Line in the Sand”?
The ECJ’s adoption of stare decisis and France’s introduction of plea bargaining are but two examples of the powerful trend towards the “Americanization” of European law. But the process will not be a smooth one. Spain’s spectacular re-introduction jury trial in 1996 appears to be hitting a brick wall (23). Perhaps, just as Prof. Carlos Ruiz Moreno had warned back in 1995, the risks outlined by Max Weber about “any assault on traditional legal procedure that threatens the material interests of the practitioners” are finally materializing in the sun-bathed peninsula. (24).
Besides, the so-called “Globalization of law” is not a one-way street phenomenon. In a 2003 case involving sodomy laws in Texas, US Supreme Court Justice Anthony Kennedy noted that state sodomy bans were “out of step with the laws in other Western democracies” – and he went on to cite rulings from the European Court of Human Rights. His colleague Justice Sandra Day O’Connor is quoted as having told the Atlanta Constitution newspaper that “American courts need to pay more attention to international legal decisions to help create a more favorable impression abroad.” (25)
These comments have emboldened American environmental and human rights activists into lobbying US courts to allow European rulings as precedents. James Lovegrove, managing director of the European division of the American Electronics Association, a United States industry lobby, recently complained: "The moment the ink hits the paper in Europe it becomes a global piece of legislation." (26) Needles to say, this situation has the US Supreme Court deeply divided, with Justice Antonin Scalia usually acting as the standard-bearer of the conservatives.
III. a.- The line in the sand: death penalty and international law
While American courts will undoubtedly respond from time to time to activists’ concerns –perhaps even citing European precedents- this movement is dwarfed by the momentous implications of the European Court of Justice’s embrace of stare decisis and France’s adoption of plea bargaining. In at least two areas, however, even non-lawyers can see a distinct “line in the sand” drawn by Europeans in their reception of the American legal culture. These areas are the death penalty, on the one hand, and the rather imprecise and politically charged domain of international law, on the other hand.
In their brief but illuminating discussion of the death penalty, Garapon and Papadopoulos clearly show how this “line in the sand” operates. While US federal law only provides procedural guidelines aimed at limiting arbitrary executions in state jurisdictions, the European Council imposes (on every candidate member) a judicial and moral model to be adopted in substance. Thus, even when an American lawyer condemns such and such execution on procedural grounds, his or her European colleagues tend to react with incredulity. To them, the death penalty is intrinsically bad. They see it as contrary to the principle of human dignity.
The principle of human dignity plays an important role in European Court of Justice rulings. On October 14, 2004, the ECJ upheld a ban imposed by German courts on the Bonn-based "Laserdrome", where participants simulate killing each other with lasers. The Court cited “the protection of human dignity which the [German] national constitution seeks to guarantee.” Commenting on the ruling, Renée Cordes reckons that Germany is “justifiably keen to thwart all behavior that even simulates violence and recalls the nightmare of its troubled past.” (27)
Contrast this reasoning with George W. Bush’s response to a European journalist on his first overseas trip as president, in June 2001. The reporter asked the president why he supported the death penalty – a question timed to coincide with Timothy McVeigh’s execution. William Schneider, a resident fellow with the American Enterprise Institute think tank, recounts Bush’s reaction:
“Bush answered that in the United States the people rule and that the death penalty is the democratic consensus of the American people. He said that, as an elected leader, he is in no position to defy the will of the people.” (28)
The ECJ’s mention of “human dignity” and President Bush’s response can be interpreted as a restatement –from each side of the cultural divide- of the basic issue of the ultimate sources of law. Let us see why.
War, sovereignty and the source of law
As the sixteenth century wars of religion in France threatened to create a major upheaval in Europe, the French jurist Jean Bodin came up in 1576 with the principle of sovereignty in his ground breaking treatise Les Six Livres de la République (29). Shocked by the horrors of the French religious wars, Bodin sought to establish a strong centralized authority as a means to uproot civil war. He set out clearly the argument round which most political discussion centered in the 17th and 18th centuries: law is merely an expression of the sovereign will (30).
Yet more civil wars broke out, followed by several centuries of horrific inter-sate European wars. Thus, the current muscle-flexing European institutions can be seen, in the words of Jacques Delors, as a “Bodin-esque” attempt to transcend this
“… interminable guerre civile européenne qui a tourné par deux fois à la guerre mondiale.” (31) (emphasis added.)
In 1993, when a monetary crisis erupted in Europe over the issue of Germany’s high interest rates, former chancellor Helmut Schmidt warned the central bank about the risks it was taking, just as war was raging in the Balkans and Kohl and Mitterrand were showing signs of disagreement. Schmidt then followed up in 1996 with a dramatic open letter to the Bundesbank president, complaining that the central bank’s high interest rates were threatening to undo the project of European Monetary Union. And he warned Mr. Tietmeyer in stark terms:
“Hat uns 1930, 1931, 1932 nicht schon einmal eine Leitung der Reichsbank, Ihrer Vorgängerin, wegen monomaner deflationistischer Ideologie ins Unglück massenhafter Arbeitslosigkeit gestürzt, mit grauenhaften politischen Folgen?” (32)
Thus, Europeans appear to be willing to endow a number of supra-national institutions –the European Central Bank, the ECJ, and others- with powers aimed at erasing the possibility of any conflict that recalls “the nightmare of the continent’s troubled past.” If reaching this ultimate goal comes at the cost of letting the ECJ uphold the rather vague notion of human dignity –with some potentially negative consequences in terms of economic freedom and jobs (as shown by the Bonn “Laserdrome” case)- they do not seem to mind.
The contrast with the American view is patent. President Bush’s reply about the execution of Timothy McVeigh stressed the old common law notion that the sovereign is not the source of law. As we saw in Section I, the Anglo-American legal tradition was originally based on the protection of private property rights. Thus, it should come as no surprise that Bush’s response carries an implicit message: “human dignity” is too imprecise a principle (from a common law perspective.) That is what Edmund Burke had in mind when he criticized the French Revolution and its ideas of “metaphysical rights.” A quarter of a century later, Justice Joseph Story, the pioneer of the “Americanization” of the English common law, put it even more bluntly:
“The obligation of the common law to deal with cases and controversies forced it to grapple with substances, instead of shadows, with men’s business, and rights, and inheritances, and not with entities and notions…”; “We ought not to permit ourselves to indulge in the theoretical extravagance of some well-meaning philosophical jurists, who blieve that all human concerns can be provided for in a code, speaking definite language”; “What legislatures can do is not to create principles of law but to clarify and refine those which had been developed over time by the common-law courts”; “Beware of metaphysical inclinations and of perfectionist and radical speculation” (33).
International law: where’s my lawyer?
Building on the success of the EU, some Europeans intellectuals and politicians are eager to extend the model of peace-through-centralized-institutions well beyond the confines of Europe. Sometimes, this leads them to promote some colorful political initiatives. Thus, in September 2004, French and Spanish presidents Jacques Chirac and José-Luis Rodríguez Zapatero announced at the UN Assembly General their support for a “global tax on financial transactions and on greenhouse gas emissions” to up to US$ 50 billion to fund a worldwide campaign against hunger. President Bush did not care to attend the meeting.
But the European idea of universal jurisdiction, derived from an overarching concern for global peace, shows that a “line in the sand” clearly exists between Europe and the United States when it comes to key aspects of international law. The well-known controversies over the International Criminal Court, the Kyoto treaty on emissions and the 2003 war in Iraq are only the most visible signs of a dispute centered –once more- on the issue of the sources of law.
A telling example occurred early in 2004 when the UN Security Council asked the International Court of Justice to provide advice on the “legal consequences” of Israel’s security fence in the West Bank. According to an editorial from the British newspaper The Telegraph, the UN was sending the case to The Hague “as if it were a supreme court” and not an “arbitration panel.” An arbitration panel provides “a mechanism whereby two states can, by mutual agreement, refer a dispute to third party settlement.” But Israel did not recognize the validity of the proceedings. Thus, concludes The Telegraph, precedents set by Belgian and Spanish judges (failing to recognize national sovereignty) and by rulings from the ECJ and the EHRC have emboldened the UN to “strike at the principle of territorial jurisdiction that ultimately underpins diplomatic relations.” (34)
Simply put, the controversy boils down to a different set of values. Europeans favor peace above all; Americans are more concerned with economic growth and prosperity. On the one side, human dignity trumps the formality of judicial proceedings. On the other, formality is the law. But international law, by its very essence, is not of a formalistic nature. Thus, when German chancellor Gerhard Schröder complained to president Bush in 2003 that the Iraq war did not conform to the UN Charter and therefore was illegal, Bush responded: “International law? I better call my lawyer. He didn't bring that up to me.” (35)
III. b.- Britain at the crossroads
Although he supported the Americans in the Iraq war, British Prime Minister Tony Blair does not share president Bush’s contempt for international law. In a speech to his constituency in March 2004, he argued that “…we went to war to enforce compliance with the UN resolutions.” Blair is also an enthusiastic promoter the Kyoto initiative. In September 2004, he said that Britain would make climate a priority during its G8 presidency. And he added: “I want the G8 to secure an agreement as to the basic science on climate change and the threat it poses,” in a likely reference to US reluctance to sign up to agreements to fossil fuel emissions. (36)
(1) Sanne Taekama (ed.): Understanding Ducth Law. Boon Juridische uitgevers, 2004.
(2) Edmund Burke: Reflections on the Revolution in France (1790). Oxford: Oxford University Press, 1993, p. 20.
(3) Konrad Zweigert & Hein Koetz: An Introduction to Comparative Law. Oxford: Clarendon Press, 1998.
(4) This stands in obvious contrast to the European legal tradition that later evolved in the continent. Thus, Garapon and Papadopoulos quote an author who –without mincing her words- writes that Americans (who adopted and refined the English common law) “see law as a set of procedures, with little regard to its substance.” See Carol J. Greenhouse: “Perspectives anthropologiques sur l’américanisation du droit”, Archives de philosophie du droit (Paris: Dalloz, 2001), cited by Antoine Garapon & Ioannis Papadopoulos: Juger en France et en Amérique. Paris: Odile Jacob, 2003. As Carpenter and others have shown, the new system proved immensely successful. The standardization of the procedures, the low cost of the writs, and the key role played by local juries gave the crown a virtual monopoly in pleas involving possession of the land. The legal system was actually very user-friendly! The more I read on the subject, the more I am inclined to draw an analogy between the English common law and … the modern “Windows” operating system for personal computers. This particular piece of software may not be the best, but it is cheap and secure. Users can opt for a competing operating system, but they tend to choose Windows. The same happened to the Angevin legal machine: people could opt for baronial courts – but instead they chose the standardized, cheap and reliable system of royal courts with local juries. R. N. Swanson, in The Twelfth Century Renaissance, summarizes the situation in business-like language: “The effectiveness of the changes was due to market forces; the crown offered solutions, encouraged plaintiffs, and rival jurisdictions could not stand the competition … feudal justice was driven out of business.” See also Mike Macnair: “Vicinage and the Antecedents of the Jury”, Law and History Review, Vol. 17, No. 3, 1999.
(5) Winston S. Churchill: A History of the English-Speaking Peoples, Vol. I. London: Cassell and Company, 1956.
(6) See Norman F. Cantor: The English. A History of Politics and Society to 1760. London: Allen & Unwin, 1967. This raises another question: is Christianity as a source of law? Judges applied precedents, but what was the basis of these precedents? Searching for clues, I stumbled upon W. L. Warren’s book King John (London: Book Club Associates, 1960) and its account of Magna Carta. Warren says of Archbishop Stephen Langton: “… he more than anyone can be held responsible” for the text of Magna Carta. Intrigued, I read the 61 articles of the charter looking for signs of religious influence. To my surprise, I found that Magna Carta can indeed be interpreted in such terms (a fact eschewed by the modern historians I have read.) The charter provides for security against murder, against bearing false witness, against adulteration of weights and measures, and against robbery. These are the very principles of … Deuteronomy 25, 13-16 and of the second half of the Ten Commandments! The relationship between Christianity and the English common law was famously debated in the context of the American Revolution by Thomas Jefferson and Supreme Court Justice Joseph Story, with Jefferson taking the “enlightened” view and Story the more religious side. The point here is to remind the reader that important authors do see a link between the English common law tradition and Christianity - - another key difference with the modern European legal tradition. Thus, religious views are sometimes considered superior to precedents. In one case involving slavery in 1819, judge Story –a fervent abolitionist- dissented from the Supreme Court’s opinion, which was based on a precedent upholding slavery. See R. Kent Newmyer: Supreme Court Justice Joseph Story. Statesman of the Old Republic. Chapell Hill: The University of North Carolina Press, 1985.
(7) Ralph Turner: Magna Carta Through the Ages. London: Pearson, 2003.
(8) The fact that Britain was an island was a factor too: it was easier for Henry II to extend the administrative authority of the crown than it was for Frederick Barbarossa. Over the years, the administrative unity of England meant that a key impulse behind the movement of codification of law would be forever absent. The point is made by Alan Harding in his Medieval Law and the Foundations of the State. Oxford: Oxford University Press, 2002.
(9) Thus Justice Story, one of the pioneers of the “Americanization” of the English common law, defined it as a system “by which contracts are interpreted, and property secured.” Judicial decisions, in turn, were deemed “but the formal promulgations of rules antecedently existing.” His biographer concluded that Story “did not, of course, speak to the enslaved, the poor and property-less … but to the property-owning middle and upper class and to the venturesome entrepreneurs who defined cultural values.” (emphasis added) See R. Kent Newmyer, op.cit., p. 304.
(10) The term commonly used for the doctrine of precedent is called stare decisis. This is an abbreviation of the Latin phrase, stare decisis et non quieta movere (to stand by precedents and not to disturb settled points). Stare decisis means that a point of law once settled by a judicial decision is not to be departed from. In other words, an earlier case when directly in point must be followed in a subsequent case. A court is bound by statute or by the decisions of superior courts. See A.R. Biswas: “Radio Decidendi and Common Cause vs. Union of India”, Supreme Court Cases, Vol. 25, No.4, 1987.
(11) See J. W. Harris: “Precedent”, in Legal Philosophies (second edition.) London: Lexis Nexis, 2003.
(12) Rules of Procedure of the European Court of Justice, Article 104 (3), Chapter 9. See www.curia.eu.int
(13) Hans W. Baade: “Stare Decisis in Civil Rights Countries: The Last Bastion” in Peter Birks & Adrianna Pretto (eds.): Themes in Comparative Law. In Honour of Bernard Rudden. Oxford: Oxford University Press, 2002.
(14) Sanne Taekama (ed.): Understanding Ducth Law. Boon Juridische Uitgevers, 2004.
(15) Jonathan Miller: “Judicial Review and Constitutional Stability: A Sociology of the US Model and its Collapse in Argentina”, Hastings International and Comparative Law Journal, Vol. 21, 1997.
(16) Patti Waldmeir: “How far should the long arm of US law reach?”, Financial Times, March 1, 2004 and “The vanishing borders of justice”, Financial Times, July 5, 2004.
(17) Kevin B. Johnson: “Assessing legal risk and the evolution of law”, Emporia State University, 2002.
(18) IMD – World Competitiveness Yearbook 2004, available at www.imd02.ch
(19) “Competitiveness, competitiveness, competitiveness" should be the mantra of the new Barroso Commission, according to European business association UNICE (www.unice.org). This organization also calls for “better regulation with compulsory business assessment for new legislative proposals.”
(20) Nathalie Guibert: “La justice française passe à l’heure du plaider coupable”, Le Monde, October 1, 2004.
(21) Garapon & Papadopoulos, Juger en France et en Amérique. Paris: Odile Jacob, 2003, chapters III and IV.
(22) See Economic Freedom of the World: 2003 Annual Report, Fraser Institute (www.fraserinstitute.ca)
(23) See the recent well-publicized cases of Sonia Carabantes Guzmán and Juan Manuel Fernández Montoya “Farruquito”, which are both to be heard by a “professional court” instead of “popular juries.”
(24) Carlos Ruiz Miguel, “Jurado y Estado Social y Democrático de Derecho”, Congreso Internacional de Derecho Constitucional, Alicante, 1995. The Max Weber quote if from Wirtschaft und Gesellschaft, as cited by Konrad Zweigert & Hein Koetz: An Introduction to Comparative Law. Oxford: Clarendon Press, 1998.
(25) See Charles Lane: “Thinking Outside the US”, Washington Post, 4 August 2003 and Tom Barett: “American Daily”, June 11, 2003.
(26) See Otto Pohl: “Environmentalists Push a New Lever: Globalization”, International Herald Tribune, July 6, 2004.
(27) Renée Cordes: “Laser-Faire”, Tech Central Station, October 19, 2004.
(28) William Schneider: “A People-Watching Court”, AEI, June 29, 2002.
(29) See Ruben Alvarado: “Rights, Revolution and World Order”, Common Law Review, March 28, 2003.
(30) Although customary or natural law do provide some limitations in the case of an absolute monarch. See Antonio-Carlos Pereira Menaut: Lecciones de Teoría Constitucional. Madrid: Colex, 1997.
(31) Jacques Delors: “Réunifier l’Europe: notre mission historique”, Conférence Wallenberg, Aspen Institute, November 1999.
(32) Helmut Schmidt: “Offener Brief an Bundesbakspräsident Hans Tietmeyer”, Die Zeit, November 8, 1996.
(33) Quoted by R. Kent Newmyer: Supreme Court Justice Joseph Story. Statesman of the Old Republic. Chapell Hill: The University of North Carolina Press, 1985.
(34) “Positive side of the fence”, The Telegraph, 23 February 2004.
(35) Quoted by Mark Steyn: “All the good things they never tell you about Iraq”, The Telegraph, September 19, 2004.
(36) “Blair makes appeal to tackle global warming”, AP, September 16, 2004.
I. The American legal culture: property rights and the sources of law
I. a.- A brief historical account of the early English common law
Most legal systems today recognize a number of different sources of law. In the Dutch system, for example, enacted law –that is, law created by a legislative body- is usually placed at the top of the hierarchy. As in most civil law jurisdictions, case law and customary law play a secondary role. According to Sanne Taekama, “…Within the category of enacted law, there is a clear hierarchy of sources … treaties precede the Constitution, which precedes Acts of Parliament, which precede other government regulations.” (1)
This stands in sharp contrast to American law, which belongs to the legal family of the English common law. Here the hierarchy is reversed: non-codified case law usually finds itself at the top. Indeed, enacted law was originally meant to “operate on the principles of the common law.” (2) Understanding this hierarchical structure –with lex non scripta at the top- is one of the keys to unveil the apparent mystery of the American legal culture.
A brief historical account
As Zweigert and Koetz have noted, “More than any other legal system, English law demands a study of its historical origins.”(3) Some degree of knowledge about the early development of the English common law is required if one whishes to capture the essence of the modern American legal culture.
The most recent account of the birth of the English common law is David Carpenter’s The Struggle for Mastery. Britain 1066-1284 (London: Penguin, 2003.) The development of what Carpenter calls Britain’s “uniquely powerful institutions” is inextricably linked to the fact that England was ruled, from 1154 on, by the Angevin or Plantagenet dynasty.
As kings of England, Henry II and his sons Richard the Lionheart and John “Lackland” were also dukes of Normandy, and they ruled Anjou and Aquitaine as well. That meant one sure thing: perpetual war with the French King! At the risk of over-simplifying Carpenter’s account, we can say that the legal system known as English common law was devised out of Henry II’s need to create an administrative framework that would enable him to keep his power basis in England while simultaneously waging war against the French king.
The key initial steps were taken between 1166 and 1215. It is commonly assumed that the institution of jury trial was extended to civil cases around the year 1166. This was a crucial step, for it crystallized a political alliance of sorts between the crown and the impoverished gentry. With juries manned by members of the gentry, property disputes between members of the gentry and the rich land-owners who contested the king’s power (the so-called barons) were mostly settled in favor of the former.
The form of procedure was simple and cheap. A form called writ would suffice to start a legal action in a property dispute. The verdict would then be given by a local jury of “twelve free and law-worhty men” before the king’s justices. A writ would cost only 6 pennies, a sum that was “within the reach of the humblest freeman.” Thus from the outset, the Angevin legal system was a highly formalistic one. Legal action in royal courts could only be undertaken by means of a writ covering a specific offense. (4)
I. b.- The American legal culture: the sources of law
This brief historical account of the early English common law shows the importance of “the idea of utility” (Carpenter.) Legal writers would discuss “things not theoretical but useful: non subtilia sed utilia.” Already, there was a premium on law, as opposed to justice.
But there is an additional –and more substantial- difference between the early English common law and the systems that were later implemented in France and in Germany in accordance with Roman law. It is about the sources of law - and it provides much of the material needed to understand the disparities between current legal cultures.
Law as “external” to the sovereign body
Given the constant absence of the Angevin kings (they were out of England most of the time, fighting the French in Normandy or crusading against Muslims), a set of criteria had to be devised. Which cases necessitated the issuance of new writs? What punishment to apply? If these absentee kings could not be relied upon to act as the source of law (as in Roman law), something else had to be found.
That is probably how the doctrine of precedent came into being in England. In his fascinating account of the English common law in A History of the English-Speaking Peoples, Winston S. Churchill writes:
“The law was already there, in the customs of the land, and it was only a matter of discovering it by diligent study and comparison of recorded decisions in earlier cases and applying it to the particular dispute before the court… Here was precedent … popularly known as case law.” (5)
In the end, as we know, the Angevin kings created a system that proved too successful for their own good. Once the barons forced King John to sign Magna Carta in 1215, the principle that “the king should be under God and the law” became a well-established one. Rex non debet esse sub hominess sed sub Deo et lege! (6).
“The law”, writes Churchill, “flows from the people, and is not given by the King.” This, wrote the English statesman in 1939, is a principle “that endures to this day.” As is emphasizing this point, Article 39 of Magna Carta –reformulated by James Madison in the American Bill of Rights- sets forth the idea that law is external to the king.
These developments were taking place well before Parliament began to exist, let alone to legislate. Indeed, according to Norman Cantor, there was a “reluctance to accept the idea of positive legislation.” To any European intellectual trained in the enlightened democratic republican tradition –which sees legislation as the sole source of the law- these views are highly surprising.
Summing up: property rights and the English common law tradition
A proper understanding of the principles underlying the American legal culture starts with the early history of the English common law. This tradition formed an essential part of the American colonists’ toolkit. If anything, the American Revolution went decidedly further down that road.
According to historian Ralph Turner, when Americans “put into practice Magna Carta’s fundamental lesson of limitations on a government’s power”, they went “further” than the old charter. Thus, the first amendment prohibits Congress from legislating about the establishment of an official religion, and about the abridgement of freedom of speech or the press. (7) And as Tocqueville famously observed, Americans converted the old aristocratic English jury system into a powerful machine of popular representation.
What is now called the “Anglo-American legal culture” emerged out of a very peculiar historical –and geographical- context. The Angevin kings had devised a legal system designed to protect the property rights of the gentry, their political ally in the struggle against the barons. They did so to keep their power base in England while waging war in the continent. Neither the French nor the German kings faced such an intricate strategic situation. (8)
In due time, the British Parliament saw fit to enact sweeping reforms that reorganized the courts and modernized the common law by abolishing forms of action. Meanwhile, in the United States, case law lost part of its dominant position due to the growth of legislation. Thus, the gap between the Anglo-American and the Continental European legal traditions was reduced.
Yet the fact remains, as Cantor timely reminds us, that “the whole of English constitutional history is an appendix to the land laws.” A constitution based on land laws? Indeed. The Anglo-American legal system is a set of institutions originally designed to protect the stability of private property rights. One needs to fully grasp this fact to understand why concepts and values such as sovereignty (as a source of law), equality, dignity, and even “justice” play only a minor role in the Anglo-American legal culture (9).
II. Europe Receives the American Legal Culture
II. a.- The European Court of Justice embraces the doctrine of precedent
The Court of Justice of the European Communities, better known as the European Court of Justice (ECJ), was established in Luxemburg to adjudicate on matters of European law. It is sometimes called the “supreme court of the European Union.” In 2000, the ECJ stunned the judicial establishment when it decided to embrace stare decisis, the doctrine of precedent. (10)
Up to then, the Court had based its procedures on a mandate from Justinian’s code: "Cases should be decided on the basis of laws, not precedents.” In other words, judicial precedent was not considered a formal source of law. In an often-cited 1962 case, Advocate-General Lagrange had argued that “the Court should accept the French strict view of Res Judicata, according to which no decision of any court can have regulatory effect for any one who was not party to the litigation” (11).
The entirely new position embracing stare decisis was put forward by the Court in a document issued in May 2004 to consolidate its rules:
“Where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the answer to such a question may be clearly deduced from existing case-law or where the answer to the question admits of no reasonable doubt, the Court may, after informing the court or tribunal which referred the question to it, … give its decision by reasoned order in which, if appropriate, reference is made to its previous judgment or to the relevant case-law.” (emphasis added.) (12)
In an essay devoted to this particular incident, Hans Baade calls our attention to the fact that “precedent of the Court of Justice of the European Union … is binding on French and German courts at all levels.” Thus he concludes:
“… the emergence of the very notion of judicial precedent in the case-law of these two European courts [the European Court of Justice and the Strasbourg-based European Court of Human Rights] shows that stare decisis is in the ascendant in civil-law countries.” (13)
Why apply precedents?
Stare decisis is not officially recognized in Belgium, France, Germany, Italy or the Netherlands, but high court decisions in these nations do influence lower courts. In the Netherlands, the Supreme Court will in practice “usually not overrule its own previous decisions.” (14) But why apply precedents at all?
Power is a possible explanation. Professor Jonathan Miller of Southwestern University has outlined a model of the “independent charismatic authority of the judiciary” based on Max Weber’s work on law and economics. (15) According to Miller, an independent supreme court needs to apply stare decisis to its own rulings in order to acquire prestige and “charismatic authority.” Paradoxically, this power may then be used to deviate from precedent in a “charismatic decision” –for example, on abortion or gun control. To rebuild its prestige, the court then initiates a new (and long) period of respect for its own rulings.
Another concern is the rule of law. Stare decisis is seen as a way to “foster stability in the law” and to “engender reliance”, as Justice Kennedy ruled when presenting the opinion of the US Supreme Court in ITEL v. Joe Huddleston in 1993. More recently, however, economic explanations seem to have taken the upper hand. Legal counsel Patti Waldmeir, in a series of newspaper articles on the reach of American law, nails down the usual suspect: globalisation. Says Waldmeir:
“… as economies become globalised, do does the law .. Globalisation was the biggest theme of the last US Supreme Court term, a term dominated by cases that dramatized the interdependence of economies around the world – and the cultural and legal conflicts that arise.” (16)
Following that trail, I came across an intriguing connection between stare decisis and business competitiveness. Comparing case law in the United States and enacted law in civil law countries, Kevin Johnson argues that businesses can better assess legal risk when stare decisis enables courts to develop and clarify previously enacted law (17).
This, says Johnson, may have important consequences for companies. Before deciding on a project, any business needs to assess a number of risks: country risk, currency risk, interest rate risk, market risk – and legal risk. The more relevant information there is about each of these risks, the better a company can prepare.
In the particular case of legal risk, court opinions are a precious source of information. Johnson shows how American courts –drawing on the Civil Rights Act of 1964- have interpreted (or “constructed”) a body of sexual harassment law that has attained, over a sixteen-year span covering five major cases, a level of precision that no positive legislation can match. All of the likeliest scenarios of sexual harassment have been precisely defined and catalogued, “without involving the legislative process.”
This is what judges do when their opinions carry the weight of stare decisis. As they shape the law, step by step, court opinions provide crucial information that can be cheaply obtained even by small businesses, which normally lack the legal resources of big corporations. Thus, concludes Johnson, businesses can reduce costs by precisely tailoring the type of insurance they need to confront the issue of sexual harassment. The same process is valid “for virtually any legal issue.”
Stare decisis and economic competitiveness
Did the European Court of Justice have such ideas in mind when it decided to embrace stare decisis? Quite possibly. In 2000, the issue of European competitiveness was all the rage. In March 2000, the EU Heads of States and Governments agreed to make the EU "the most competitive and dynamic knowledge-driven economy by 2010" (the so-called Lisbon Agenda.)
Checking the most recent “World Competitiveness Scoreboard” from the Lausanne-based IMD business school, which lists sixty countries according to their level of competitiveness, one finds some interesting results (18). Among the ten most competitive countries, the first four are common-law jurisdictions applying stare decisis: the United States, Singapore, Canada, and Australia. Two more among the “top-ten”, Hong Kong (7th in rank) and Ireland (10th), are also common-law jurisdictions.
The presence of three Nordic Countries –Iceland (5th), Denmark (7th) and Finland (8th)- is not all that surprising. On its website, the Royal Danish Ministry of Foreign Affairs informs that,
“From ancient times existing the contents of the law have … been determined by the courts by means of case law in areas where there is no legislation, and this still occurs, for instance especially in the law of compensation. In other legal systems, especially in countries with legal systems inspired by Anglo-Saxon law, common law, the courts have, however, a far greater law-creating function than in Denmark.” (emphasis added.)
The same principle applies to Icelandic and Finnish law: Nordic countries are not common law jurisdictions, but they do apply some measure of stare decisis. One the other hand, we note that the ten least competitive countries of the World Competitiveness Scoreboard (Russia, Italy, Philippines, Brazil, Romania, Turkey, Poland, Indonesia, Argentina and Venezuela) are all civil law jurisdictions with no stare decisis.
While much work needs to be done to arrive at more solid conclusions, preliminary evidence tends to suggest that a sound legal system endowed with stare decisis may indeed be one factor (among many others) explaining competitiveness. At a time when competitiveness is so eagerly sought, the Court’s reception of this doctrine should come as no surprise (19).
II. b.- France adopts plea bargaining
In yet another stunning development, France has adopted the legal procedure known as plea bargaining. From October 2004 on, a defendant can plead guilty in return for a reduction of the severity of the charges. If an agreement is reached, no trial takes place. Officially labeled “comparution sur reconnaissance préalable de culpabilité”, the new procedure –also known as “plaider coupable”- is the key tenet of the so-called loi Perben.
This piece of legislation has created unprecedented turmoil within the French legal establishment. Le Monde mentions a state of “ébullition du monde judiciaire” even as the new procedure threatens “to upset the judicial culture” (“bouleverser la culture judiciaire.”) (20)
The driving force behind the new scheme is the need to reduce costs. The French judicial administration, burdened by an ever increasing case-load, badly needs to shorten the length of proceedings and to improve its overall efficiency. However, at the heart of the plea bargaining controversy lies a sharp cultural divide centered on the trial itself, known as procès in French. The following section draws largely on Garapon and Papadopoulos’ thorough analysis of “trial v. procès” (21).
American trial or French procès? A cultural divide
The American trial, write Garapon and Papadopoulos, is a formalized event centered on the initial plea. In any criminal suit, the defendant must either plead “guilty”, “not guilty” or “no contest.” Only a “not guilty” plea leads to a full trial, also known as trial by jury or jury trial. The contrast with the procès is striking: here, the French État opens the proceedings with a public reading of the act of accusation.
The American trial is considered an “accusation-driven” contest between two parties, with the judge acting as an “umpire.” By contrast, the procès is an inquisitorial affair where the judge is sometimes deeply involved in the investigation phase. The very notion of truth is seen from different angles. In the American trial, the goal is not necessarily to attain a hypothetically absolute truth, but to persuade members of the jury by using “common sense” (and doing so orally.) Meanwhile, the French enquête spares no efforts to arrive at intellectually satisfactory conclusions –mostly in written form. Droit savant v. jury-oriented common sense: Descartes v. Locke!
Garapon and Papadopoulos point to the inherent injustice of the plea bargaining system. Plea bargaining, they say, is a threat to innocent people who may be tempted to enter an agreement if they feel they risk much higher penalties in a full trial. Risk-averse individuals may thus end up unjustly penalized. To Garapon and Papadopoulos, the indictment of innocent people is morally unacceptable and socially dangerous. It is one of the dangers of a “contractual” judicial culture.
Largely to quell such fears –“pour calmer les esprits”, says Le Monde- French authorities have opted for a very gradual introduction of plea bargaining. Their estimates for the first year call for approximately ten cases per day in Paris, and only seven cases per week in Toulouse. All in all, they foresee an initially modest 5% reduction in the number of procès. In the United States, according to figures quoted by Garapon and Papadopoulos, as much as 95% of trials in federal courts, and 94% of trials in state courts are avoided thanks to plea bargaining.
Such statistics must have caught the attention of M. Perben and his associates. According to Garapon and Papadopoulos, over-generous appeal rules mean that French judges are usually tempted to quickly dispatch initial cases, knowing that they are likely to encounter them once again at a higher level. This is not a recipe for a sound (or cheap) legal system. Data compiled by the Canadian think tank Fraser Institute clearly show France lagging behind other non-Mediterranean European countries when it comes to the impartiality of its courts of justice (22).
III. Is There a “Line in the Sand”?
The ECJ’s adoption of stare decisis and France’s introduction of plea bargaining are but two examples of the powerful trend towards the “Americanization” of European law. But the process will not be a smooth one. Spain’s spectacular re-introduction jury trial in 1996 appears to be hitting a brick wall (23). Perhaps, just as Prof. Carlos Ruiz Moreno had warned back in 1995, the risks outlined by Max Weber about “any assault on traditional legal procedure that threatens the material interests of the practitioners” are finally materializing in the sun-bathed peninsula. (24).
Besides, the so-called “Globalization of law” is not a one-way street phenomenon. In a 2003 case involving sodomy laws in Texas, US Supreme Court Justice Anthony Kennedy noted that state sodomy bans were “out of step with the laws in other Western democracies” – and he went on to cite rulings from the European Court of Human Rights. His colleague Justice Sandra Day O’Connor is quoted as having told the Atlanta Constitution newspaper that “American courts need to pay more attention to international legal decisions to help create a more favorable impression abroad.” (25)
These comments have emboldened American environmental and human rights activists into lobbying US courts to allow European rulings as precedents. James Lovegrove, managing director of the European division of the American Electronics Association, a United States industry lobby, recently complained: "The moment the ink hits the paper in Europe it becomes a global piece of legislation." (26) Needles to say, this situation has the US Supreme Court deeply divided, with Justice Antonin Scalia usually acting as the standard-bearer of the conservatives.
III. a.- The line in the sand: death penalty and international law
While American courts will undoubtedly respond from time to time to activists’ concerns –perhaps even citing European precedents- this movement is dwarfed by the momentous implications of the European Court of Justice’s embrace of stare decisis and France’s adoption of plea bargaining. In at least two areas, however, even non-lawyers can see a distinct “line in the sand” drawn by Europeans in their reception of the American legal culture. These areas are the death penalty, on the one hand, and the rather imprecise and politically charged domain of international law, on the other hand.
In their brief but illuminating discussion of the death penalty, Garapon and Papadopoulos clearly show how this “line in the sand” operates. While US federal law only provides procedural guidelines aimed at limiting arbitrary executions in state jurisdictions, the European Council imposes (on every candidate member) a judicial and moral model to be adopted in substance. Thus, even when an American lawyer condemns such and such execution on procedural grounds, his or her European colleagues tend to react with incredulity. To them, the death penalty is intrinsically bad. They see it as contrary to the principle of human dignity.
The principle of human dignity plays an important role in European Court of Justice rulings. On October 14, 2004, the ECJ upheld a ban imposed by German courts on the Bonn-based "Laserdrome", where participants simulate killing each other with lasers. The Court cited “the protection of human dignity which the [German] national constitution seeks to guarantee.” Commenting on the ruling, Renée Cordes reckons that Germany is “justifiably keen to thwart all behavior that even simulates violence and recalls the nightmare of its troubled past.” (27)
Contrast this reasoning with George W. Bush’s response to a European journalist on his first overseas trip as president, in June 2001. The reporter asked the president why he supported the death penalty – a question timed to coincide with Timothy McVeigh’s execution. William Schneider, a resident fellow with the American Enterprise Institute think tank, recounts Bush’s reaction:
“Bush answered that in the United States the people rule and that the death penalty is the democratic consensus of the American people. He said that, as an elected leader, he is in no position to defy the will of the people.” (28)
The ECJ’s mention of “human dignity” and President Bush’s response can be interpreted as a restatement –from each side of the cultural divide- of the basic issue of the ultimate sources of law. Let us see why.
War, sovereignty and the source of law
As the sixteenth century wars of religion in France threatened to create a major upheaval in Europe, the French jurist Jean Bodin came up in 1576 with the principle of sovereignty in his ground breaking treatise Les Six Livres de la République (29). Shocked by the horrors of the French religious wars, Bodin sought to establish a strong centralized authority as a means to uproot civil war. He set out clearly the argument round which most political discussion centered in the 17th and 18th centuries: law is merely an expression of the sovereign will (30).
Yet more civil wars broke out, followed by several centuries of horrific inter-sate European wars. Thus, the current muscle-flexing European institutions can be seen, in the words of Jacques Delors, as a “Bodin-esque” attempt to transcend this
“… interminable guerre civile européenne qui a tourné par deux fois à la guerre mondiale.” (31) (emphasis added.)
In 1993, when a monetary crisis erupted in Europe over the issue of Germany’s high interest rates, former chancellor Helmut Schmidt warned the central bank about the risks it was taking, just as war was raging in the Balkans and Kohl and Mitterrand were showing signs of disagreement. Schmidt then followed up in 1996 with a dramatic open letter to the Bundesbank president, complaining that the central bank’s high interest rates were threatening to undo the project of European Monetary Union. And he warned Mr. Tietmeyer in stark terms:
“Hat uns 1930, 1931, 1932 nicht schon einmal eine Leitung der Reichsbank, Ihrer Vorgängerin, wegen monomaner deflationistischer Ideologie ins Unglück massenhafter Arbeitslosigkeit gestürzt, mit grauenhaften politischen Folgen?” (32)
Thus, Europeans appear to be willing to endow a number of supra-national institutions –the European Central Bank, the ECJ, and others- with powers aimed at erasing the possibility of any conflict that recalls “the nightmare of the continent’s troubled past.” If reaching this ultimate goal comes at the cost of letting the ECJ uphold the rather vague notion of human dignity –with some potentially negative consequences in terms of economic freedom and jobs (as shown by the Bonn “Laserdrome” case)- they do not seem to mind.
The contrast with the American view is patent. President Bush’s reply about the execution of Timothy McVeigh stressed the old common law notion that the sovereign is not the source of law. As we saw in Section I, the Anglo-American legal tradition was originally based on the protection of private property rights. Thus, it should come as no surprise that Bush’s response carries an implicit message: “human dignity” is too imprecise a principle (from a common law perspective.) That is what Edmund Burke had in mind when he criticized the French Revolution and its ideas of “metaphysical rights.” A quarter of a century later, Justice Joseph Story, the pioneer of the “Americanization” of the English common law, put it even more bluntly:
“The obligation of the common law to deal with cases and controversies forced it to grapple with substances, instead of shadows, with men’s business, and rights, and inheritances, and not with entities and notions…”; “We ought not to permit ourselves to indulge in the theoretical extravagance of some well-meaning philosophical jurists, who blieve that all human concerns can be provided for in a code, speaking definite language”; “What legislatures can do is not to create principles of law but to clarify and refine those which had been developed over time by the common-law courts”; “Beware of metaphysical inclinations and of perfectionist and radical speculation” (33).
International law: where’s my lawyer?
Building on the success of the EU, some Europeans intellectuals and politicians are eager to extend the model of peace-through-centralized-institutions well beyond the confines of Europe. Sometimes, this leads them to promote some colorful political initiatives. Thus, in September 2004, French and Spanish presidents Jacques Chirac and José-Luis Rodríguez Zapatero announced at the UN Assembly General their support for a “global tax on financial transactions and on greenhouse gas emissions” to up to US$ 50 billion to fund a worldwide campaign against hunger. President Bush did not care to attend the meeting.
But the European idea of universal jurisdiction, derived from an overarching concern for global peace, shows that a “line in the sand” clearly exists between Europe and the United States when it comes to key aspects of international law. The well-known controversies over the International Criminal Court, the Kyoto treaty on emissions and the 2003 war in Iraq are only the most visible signs of a dispute centered –once more- on the issue of the sources of law.
A telling example occurred early in 2004 when the UN Security Council asked the International Court of Justice to provide advice on the “legal consequences” of Israel’s security fence in the West Bank. According to an editorial from the British newspaper The Telegraph, the UN was sending the case to The Hague “as if it were a supreme court” and not an “arbitration panel.” An arbitration panel provides “a mechanism whereby two states can, by mutual agreement, refer a dispute to third party settlement.” But Israel did not recognize the validity of the proceedings. Thus, concludes The Telegraph, precedents set by Belgian and Spanish judges (failing to recognize national sovereignty) and by rulings from the ECJ and the EHRC have emboldened the UN to “strike at the principle of territorial jurisdiction that ultimately underpins diplomatic relations.” (34)
Simply put, the controversy boils down to a different set of values. Europeans favor peace above all; Americans are more concerned with economic growth and prosperity. On the one side, human dignity trumps the formality of judicial proceedings. On the other, formality is the law. But international law, by its very essence, is not of a formalistic nature. Thus, when German chancellor Gerhard Schröder complained to president Bush in 2003 that the Iraq war did not conform to the UN Charter and therefore was illegal, Bush responded: “International law? I better call my lawyer. He didn't bring that up to me.” (35)
III. b.- Britain at the crossroads
Although he supported the Americans in the Iraq war, British Prime Minister Tony Blair does not share president Bush’s contempt for international law. In a speech to his constituency in March 2004, he argued that “…we went to war to enforce compliance with the UN resolutions.” Blair is also an enthusiastic promoter the Kyoto initiative. In September 2004, he said that Britain would make climate a priority during its G8 presidency. And he added: “I want the G8 to secure an agreement as to the basic science on climate change and the threat it poses,” in a likely reference to US reluctance to sign up to agreements to fossil fuel emissions. (36)
(1) Sanne Taekama (ed.): Understanding Ducth Law. Boon Juridische uitgevers, 2004.
(2) Edmund Burke: Reflections on the Revolution in France (1790). Oxford: Oxford University Press, 1993, p. 20.
(3) Konrad Zweigert & Hein Koetz: An Introduction to Comparative Law. Oxford: Clarendon Press, 1998.
(4) This stands in obvious contrast to the European legal tradition that later evolved in the continent. Thus, Garapon and Papadopoulos quote an author who –without mincing her words- writes that Americans (who adopted and refined the English common law) “see law as a set of procedures, with little regard to its substance.” See Carol J. Greenhouse: “Perspectives anthropologiques sur l’américanisation du droit”, Archives de philosophie du droit (Paris: Dalloz, 2001), cited by Antoine Garapon & Ioannis Papadopoulos: Juger en France et en Amérique. Paris: Odile Jacob, 2003. As Carpenter and others have shown, the new system proved immensely successful. The standardization of the procedures, the low cost of the writs, and the key role played by local juries gave the crown a virtual monopoly in pleas involving possession of the land. The legal system was actually very user-friendly! The more I read on the subject, the more I am inclined to draw an analogy between the English common law and … the modern “Windows” operating system for personal computers. This particular piece of software may not be the best, but it is cheap and secure. Users can opt for a competing operating system, but they tend to choose Windows. The same happened to the Angevin legal machine: people could opt for baronial courts – but instead they chose the standardized, cheap and reliable system of royal courts with local juries. R. N. Swanson, in The Twelfth Century Renaissance, summarizes the situation in business-like language: “The effectiveness of the changes was due to market forces; the crown offered solutions, encouraged plaintiffs, and rival jurisdictions could not stand the competition … feudal justice was driven out of business.” See also Mike Macnair: “Vicinage and the Antecedents of the Jury”, Law and History Review, Vol. 17, No. 3, 1999.
(5) Winston S. Churchill: A History of the English-Speaking Peoples, Vol. I. London: Cassell and Company, 1956.
(6) See Norman F. Cantor: The English. A History of Politics and Society to 1760. London: Allen & Unwin, 1967. This raises another question: is Christianity as a source of law? Judges applied precedents, but what was the basis of these precedents? Searching for clues, I stumbled upon W. L. Warren’s book King John (London: Book Club Associates, 1960) and its account of Magna Carta. Warren says of Archbishop Stephen Langton: “… he more than anyone can be held responsible” for the text of Magna Carta. Intrigued, I read the 61 articles of the charter looking for signs of religious influence. To my surprise, I found that Magna Carta can indeed be interpreted in such terms (a fact eschewed by the modern historians I have read.) The charter provides for security against murder, against bearing false witness, against adulteration of weights and measures, and against robbery. These are the very principles of … Deuteronomy 25, 13-16 and of the second half of the Ten Commandments! The relationship between Christianity and the English common law was famously debated in the context of the American Revolution by Thomas Jefferson and Supreme Court Justice Joseph Story, with Jefferson taking the “enlightened” view and Story the more religious side. The point here is to remind the reader that important authors do see a link between the English common law tradition and Christianity - - another key difference with the modern European legal tradition. Thus, religious views are sometimes considered superior to precedents. In one case involving slavery in 1819, judge Story –a fervent abolitionist- dissented from the Supreme Court’s opinion, which was based on a precedent upholding slavery. See R. Kent Newmyer: Supreme Court Justice Joseph Story. Statesman of the Old Republic. Chapell Hill: The University of North Carolina Press, 1985.
(7) Ralph Turner: Magna Carta Through the Ages. London: Pearson, 2003.
(8) The fact that Britain was an island was a factor too: it was easier for Henry II to extend the administrative authority of the crown than it was for Frederick Barbarossa. Over the years, the administrative unity of England meant that a key impulse behind the movement of codification of law would be forever absent. The point is made by Alan Harding in his Medieval Law and the Foundations of the State. Oxford: Oxford University Press, 2002.
(9) Thus Justice Story, one of the pioneers of the “Americanization” of the English common law, defined it as a system “by which contracts are interpreted, and property secured.” Judicial decisions, in turn, were deemed “but the formal promulgations of rules antecedently existing.” His biographer concluded that Story “did not, of course, speak to the enslaved, the poor and property-less … but to the property-owning middle and upper class and to the venturesome entrepreneurs who defined cultural values.” (emphasis added) See R. Kent Newmyer, op.cit., p. 304.
(10) The term commonly used for the doctrine of precedent is called stare decisis. This is an abbreviation of the Latin phrase, stare decisis et non quieta movere (to stand by precedents and not to disturb settled points). Stare decisis means that a point of law once settled by a judicial decision is not to be departed from. In other words, an earlier case when directly in point must be followed in a subsequent case. A court is bound by statute or by the decisions of superior courts. See A.R. Biswas: “Radio Decidendi and Common Cause vs. Union of India”, Supreme Court Cases, Vol. 25, No.4, 1987.
(11) See J. W. Harris: “Precedent”, in Legal Philosophies (second edition.) London: Lexis Nexis, 2003.
(12) Rules of Procedure of the European Court of Justice, Article 104 (3), Chapter 9. See www.curia.eu.int
(13) Hans W. Baade: “Stare Decisis in Civil Rights Countries: The Last Bastion” in Peter Birks & Adrianna Pretto (eds.): Themes in Comparative Law. In Honour of Bernard Rudden. Oxford: Oxford University Press, 2002.
(14) Sanne Taekama (ed.): Understanding Ducth Law. Boon Juridische Uitgevers, 2004.
(15) Jonathan Miller: “Judicial Review and Constitutional Stability: A Sociology of the US Model and its Collapse in Argentina”, Hastings International and Comparative Law Journal, Vol. 21, 1997.
(16) Patti Waldmeir: “How far should the long arm of US law reach?”, Financial Times, March 1, 2004 and “The vanishing borders of justice”, Financial Times, July 5, 2004.
(17) Kevin B. Johnson: “Assessing legal risk and the evolution of law”, Emporia State University, 2002.
(18) IMD – World Competitiveness Yearbook 2004, available at www.imd02.ch
(19) “Competitiveness, competitiveness, competitiveness" should be the mantra of the new Barroso Commission, according to European business association UNICE (www.unice.org). This organization also calls for “better regulation with compulsory business assessment for new legislative proposals.”
(20) Nathalie Guibert: “La justice française passe à l’heure du plaider coupable”, Le Monde, October 1, 2004.
(21) Garapon & Papadopoulos, Juger en France et en Amérique. Paris: Odile Jacob, 2003, chapters III and IV.
(22) See Economic Freedom of the World: 2003 Annual Report, Fraser Institute (www.fraserinstitute.ca)
(23) See the recent well-publicized cases of Sonia Carabantes Guzmán and Juan Manuel Fernández Montoya “Farruquito”, which are both to be heard by a “professional court” instead of “popular juries.”
(24) Carlos Ruiz Miguel, “Jurado y Estado Social y Democrático de Derecho”, Congreso Internacional de Derecho Constitucional, Alicante, 1995. The Max Weber quote if from Wirtschaft und Gesellschaft, as cited by Konrad Zweigert & Hein Koetz: An Introduction to Comparative Law. Oxford: Clarendon Press, 1998.
(25) See Charles Lane: “Thinking Outside the US”, Washington Post, 4 August 2003 and Tom Barett: “American Daily”, June 11, 2003.
(26) See Otto Pohl: “Environmentalists Push a New Lever: Globalization”, International Herald Tribune, July 6, 2004.
(27) Renée Cordes: “Laser-Faire”, Tech Central Station, October 19, 2004.
(28) William Schneider: “A People-Watching Court”, AEI, June 29, 2002.
(29) See Ruben Alvarado: “Rights, Revolution and World Order”, Common Law Review, March 28, 2003.
(30) Although customary or natural law do provide some limitations in the case of an absolute monarch. See Antonio-Carlos Pereira Menaut: Lecciones de Teoría Constitucional. Madrid: Colex, 1997.
(31) Jacques Delors: “Réunifier l’Europe: notre mission historique”, Conférence Wallenberg, Aspen Institute, November 1999.
(32) Helmut Schmidt: “Offener Brief an Bundesbakspräsident Hans Tietmeyer”, Die Zeit, November 8, 1996.
(33) Quoted by R. Kent Newmyer: Supreme Court Justice Joseph Story. Statesman of the Old Republic. Chapell Hill: The University of North Carolina Press, 1985.
(34) “Positive side of the fence”, The Telegraph, 23 February 2004.
(35) Quoted by Mark Steyn: “All the good things they never tell you about Iraq”, The Telegraph, September 19, 2004.
(36) “Blair makes appeal to tackle global warming”, AP, September 16, 2004.
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