Connecting the Dots: Towards a Contextual Approach
In this contribution we have set out to explore the main features of a functional approach to judicial advice-giving. The main reason why we chose to engage in this attempt was twofold.
Firstly, we found that existing doctrinal approaches in comparative law fail to do justice to the variety of what in practice counts as ‘advisory opinions’. Doctrinal approaches focusing on the non-binding or the abstract nature of judicial advice can certainly be helpful, but they take insufficient stock of the fact that judicial advice-giving is not, or at least not only a legal phenomenon, but also a social practice situated within the broader process of public policymaking. Secondly, this observation led us to question certain normative critiques of advisory jurisdiction, rejecting the possibility of ‘yea or nay’ answers in this respect. There is simply too much variety in the world of judicial advice-giving, for any doctrinal ‘silver bullet’ to fully capture its pitfalls and advantages. A true understanding of the concept of judicial advice requires a nuanced approach.We have thus sought to conceptualize the notion of advisory opinions in its broadest sense, by zooming in on its functions, its contents, and its different modes. Building on a working definition of advisory opinions as advice of courts (as opposed to individual judges) engaged in a communicative act by which they contribute to the process of law-making on the basis of judicial authority and persuasion, we tried to identify the ways in which advisory opinions relate to the formulation of policy and constitutional law. We did so by developing a framework based on three variables: the functions policy-makers may attribute to the advisory opinion (information, deliberation, validation, insurance and delaying tactics), the types of advice involved (recommendation for and against, information, and decision support), and ultimately a typology of the different institutional modes of judicial advice (formal and informal, adjudicative and non-adjudicative, extrajudicial).
The idea is that distinguishing the different forms, functions and types of advice would allow us to locate possible pitfalls and strengths of judicial advice-giving more clearly. Moreover, combining the different options in terms of function, type and form, would enable courts to act more strategically to preserve their independence and authority. However, much additional research is needed in this respect. This conceptual analysis only provides a first exploration of the complicated relationship between these three variables. The next step would be to identify the relevant principles involved in the process of judicial advice-giving: principles like the separation of powers and judicial independence, but also democratic government, deliberation and dialogue. Only then can we think of developing a model which informs courts and legislatures about the pros and cons of judicial advice in a specific context.Arguably, judicial advice-giving fits well with the gradual transformation of a culture of authority to a culture of justification and dialogue.[966] As we have seen, advisory opinions may have legal effects, in practice if not in law. However advisory jurisdiction, by its very nature, depends, even more than the adjudicative branch of the judicial power, on persuasion rather than on authority. In a perfect culture of dialogue, the occasional rejection of advice should not as such be problematic for the authority of the advice-giver. But we do not live in a perfect world, and courts are no ordinary advisers. Their authority is vital for the performance of their core duty of providing effective legal protection, and it rests on a complex set of factors, one of which has always been the fiction that their interpretations reflect the law as such.[967]
More than any other advisor, courts should thus be concerned about the persuasive power of their advisory opinions. However legal scholarship provides very little guidance on this subject. Rather than focusing on whether judicial advice is legitimate or not, further research should explore the subtle connections between the aims, the content, and the effectiveness of judicial advice-giving. A functional approach to advice-giving might facilitate such an endeavour by bridging the gap between advice theory and legal scholarship. The mapping of the different forms and functions of judicial advice in the light of its historical development was only a first step towards such an approach.