Saturday, July 01, 2006

US Supreme Court v. European Court of Justice - a comparison.

We haven’t posted anything on the Supreme Court ruling (Hamdan v. Rumsfeld) against the Bush administration's military-tribunal plan for Guantánamo detainees – not because we missed the significance of the news but because there were enough (more interesting) things in the media about it.


What this blog is interested is the exploration of the differences and similarities between France and the US. Much of what has been written on how this week’s decision by the Supreme Court shows that check and balances and separation of powers are essential tools to democracy and can challenge an imperial presidency. What about Europe?

Despite the fact that France has a Constitutional Council, the highest constitutional authority in France, I think the Comparison with the US Supreme Court (USSC or SCOTUS) does not stand (The French CC is too weak a body and much more political than the USSC and many have questioned whether it is truly a court).

Rather, I would argue that the closest thing Europe has to a US Supreme Court is the European Court of Justice (ECJ) which deals with disputes and upholds the Treaties of the European Union. Its job is to ensure that European law is uniformly interpreted and applied throughout the Union. It has jurisdiction in disputes involving Member States, EU institutions, businesses and individuals. It sits in Luxembourg and is composed of 25 judges, one judge from each Member State.

There are definite similarities between the two courts:

  • they both rule over matters concerning the rule of the law and fundamental rights
  • they are both courts of last instance and their decision s are binding on other courts

But there are also significant differences:

  • the ECJ is a transnational court and the US SC is a national one
  • the EU does not have a written constitution (and is not likel to have one soon)
  • the ECJ decides over 500 cases while the USSC takes on about 80 cases a year
  • the USSC has more power to decide which case to take
  • the ECJ can also be a court of first instance which the USSupreme court isn’t.

Also, according to this comparative study, the ECJ follows "the Cartesian deductive syllogistic style whereas the USSC has a more dialogical, conversational, analogical and argumentative style".

More tellingly about cultural differences is how the rulings are worded. In the French style, the ECJ speaks only in one voice and does express dissent – unlike the USSC. In the US, the ruling also expresses the difficulties of the process, when in the French model, the rule of law speaks in one unique voice and competing arguments are not presented. In the US, the expression of dissenting voices is not seen as a sign of weakness but rather as a sign of inclusion.
To put it in a nutshell, in the European view, which is based on a continental model highly influenced by the French Jacobine system, the Court speaks in the name of the institution (in the name of the Republic or Europe in this case) while the American idea is that the Court expresses the view of the people.

It may be a stylistic difference but it is a major one.

The two major problems I see in the European system is that

  • the ECJ does not actually confront a separation of power issue. (This is a bit ironic since the whole idea of “checks and balances” is actually a French one – cf. Montesquieu’s writings.)
  • There is no provision in case of a conflict between national constitution or national constitution issues and the ECJ ruling. For instance, the German Constitution Court has ruled that the national constitution is paramount.

The last problem is the appointment of the judges of the ECJ:

to be appointed, the Judges and Advocate Generals must either be highly qualified academic lawyers (known in the European jargon as "jurisconsults"), or be High Court or Appeal judges in their own jurisdictions. They are appointed by joint agreement of the Governments of the Member States and have a renewable term of six years.

If their independence is be beyond doubt, there is no confirmation process through a legislative body like with the US Senate which is public and attracts considerable attention from the media. Here is yet another European institution that really needs to fill its democratic and transparency deficit.

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