The Court of Justice's Participation in the Judicial Discourse: Theory and Practice

Abstract

Judges argue within a legal frame of reference. They identify and interpret this frame and read factual situations before them in the light of it. By interpreting the law and the facts coherently with the relevant legal frame of reference they aim to objectively justify their decisions. This may sound naïve and often be much less heroic in practice. However, the core value of separation of powers and of independent judicial review is widely accepted, including the added value of the judiciary’s attempts to objectify what is ‘just’ outside of the political power struggle. Judicial discourse, it is here argued, could help the judiciary to continue to offer this objectifying value in a pluricontextual setting, where the internal and the external become increasingly interlocked because policy making is increasingly externalized, rights relevant decisions are taken by the executive outside the domestic constitutional framework, and an increasing number of players claim authority, including ultimate authority, to govern a legal situation.

The chapter hopes to contribute to the thinking about the role of the judiciary in a pluricontextual setting and turns to the European Union (EU) for inspiration. Within the EU the relationship between EU law on the one hand and the Member States collectively and individually on the other is characterized by an on-going pulling and pushing of law and politics. Both the Court of Justice of the European Union (CJEU) and Member States’ courts have long functioned in this setting. The Union legal order is a compound constitutionalized construction with interlocking claims of ultimate authority. This chapter considers what could be learned from interaction between different judiciaries within the EU legal order for the CJEU’s approach to external claims of authority.

Section One lays out the theoretical grounding of the value and necessity of judicial reasoning. It then makes the argument that both within the EU and beyond the boundaries of the EU legal order, the same philosophical arguments and theories require not only an inward looking judicial reasoning but also a discourse with other judicial bodies. Section Two looks consequently into the practice of judicial interaction between the CJEU and the courts of the Member States (internal discourse) and then to the interaction between the CJEU and international judicial bodies (external discourse). This sets the scene for Section Three, which addresses the core questions of this chapter: What lessons can the CJEU learn from the internal European judicial discourse that can be transferred to the external discourse with international courts and tribunals? What considerations should guide the CJEU’s external relations case law in the described pluricontextual setting?

Keywords: Judicial discourse; European Union; Court of Justice