Constitutional Advice as an Underexplored Scholarly Field
The topic of the current volume of the Yearbook is constitutional advice. This topic has been relatively underexplored by legal scholarship, much like the place of cities in constitutional law, which readers may recall was the focus of the previous edition.
We prefer a broad understanding of constitutional advice as encompassing the seeking and rendering of advice on constitutional topics, including the study of the processesJ. de Poorter (B) • G. van der Schyff
Tilburg University, Tilburg, The Netherlands
e-mail: j.c.a.depoorter@tilburguniversity.edu
G. van der Schyff
e-mail: g.vdrschyff@tilburguniversity.edu
M. Stremler
Maastricht University, Maastricht, The Netherlands
e-mail: m.stremler@maastrichtuniversity.nl
M. De Visser
Yong Pung How School of Law, Singapore Management University, Singapore, Singapore e-mail: mdevisser@smu.edu.sg
© T.M.C. ASSER PRESS and the authors 2022 1
J. de Poorter et al. (eds.), European Yearbook of Constitutional Law 2021,
European Yearbook of Constitutional Law 3, https://doi.org/10.1007/978- 94- 6265- 535- 5_1 and institutions that enable and contextualise such advice. This understanding immediately calls to mind two interrelated questions, viz. what is meant by ‘advice’, and what may be considered to be ‘constitutional topics’ that the advice relates to.
In order to grasp the meaning of advice in the constitutional field, a better understanding of law is helpful as it anchors the kind of advice that is of interest for present purposes. While political, economic or social factors undoubtedly shape the design and operation of constitutional law, the advice that takes centre stage in this volume is firmly grounded in the law. Law has been described as a semantic system of rules, together with institutions and decisions, which are to guide human behaviour and the organised responses in the event of non-compliance with these rules.[1] It is to be found in (overlapping) communities whose members share a stabilised expectation of reciprocity when it comes to adhering to these rules.[2] A constitution is understood as the law that regulates such expectations in a given legal order.[3] Institutions, such as courts, are important to the law, as they assess to what extent there has been compliance with the normative expectations created by legal rules.[4]
Law is clearly a deeply normative project, which regulates a community by requiring obedience from its members and by providing for institutional enforcement.
This is particularly true for constitutional rules. Ever since the end of the Second World War, the edifice of constitutional law has been an expanding one, and one which has become progressively more ‘legal’ in the sense of binding norms coupled with institutional enforcement. The political and symbolic character of constitutions has often been surpassed in importance by the status of constitutions as the supreme law of the land. Consider, for instance, Tim Koopmans’ definition of constitutionalism as ‘bipolar’ in that courts are increasingly called upon to control the exercise of public power by executives and legislatures.[5] Unsurprisingly, the phenomenon of constitutionalism as positive law, and not simply positive or political morality, has been the object of increased study and development by scholars.[6] Yet such endeavours do not provide a complete picture of the range and depth of constitutional processes within and across modern-day legal communities.A fuller understanding of such processes today must contend not only with constitutional laws, but also with the realm of constitutional advice, which may precede and is often instrumental in fashioning, enforcing and reviewing such laws. The rendering of professional, academic and institutional advice on topics of constitutional law is one which is characterised by a burgeoning practice which, somewhat curiously, has not always been matched by serious and wide-ranging scholarly attention.[7] This third volume of the Yearbook is therefore dedicated to developing our understanding of constitutionalism through the prism of advice, as opposed to the usual emphasis on the binding character of the rules which may undergird such advice or be the culmination thereof.
Advice, in principle, does not amount to a constitutional course of action which an actor is enjoined to follow, or must complete in an imperative sense. Rather, advice can be understood as ‘a subsidy of information and ideas’ on a constitutional topic, to borrow the description by Tom Ginsburg—a contributor to this volume (see Chap.
2) and one of the leading scholars to have studied this vast topic.[8] Advice by its very nature implies that a decision-maker is not bound to accept it; it rather serves to inform the decision-maker’s choice. This is not to deny that tension can exist between the rendering of advice on the one hand, and the expectation or need to follow it on the other. We read, for instance, in Maija Dahlberg’s chapter (Chap. 8) that although the Swedish Law Council’s opinions are non-binding, they are de facto clearly important.Against this backdrop, it may at first glance be confusing to make sense of Mark Tushnet’s description of the phenomenon as ‘normative advice’.[9] He however does not intend to imply that a decision-maker is bereft of choice and therefore formally bound to heed advice. Instead, ‘normative advice’ should be understood as ‘normative recommendations’ drawn by scholars from accumulated information regarding constitutions about what will work in particular circumstances.[10] On this reading, ‘normative advice’ is not a contradiction in terms and proves to be compatible with the notion of constitutional advice for current purposes.
To the extent that scholarship has addressed the topic of constitutional advice, this has typically been done in the context of constitution (re-)making projects in partic- ular.[11] This form of constitutional advice is discussed, among others, in the chapter by Ginsburg (Chap. 2) and in the chapter by Marian Yankson-Mensah and Mariale- jandra Moreno Mantilla (Chap. 7). By definition though, advice can cover a much wider ambit, as the contributions to this volume illustrate. Advice may also be given, or required, in relation to the implementation and reform of constitutions broadly conceived. This also means that there may be advice worthy of study that relates to the unwritten constitution, for instance the operation of conventions, customs and behavioural practices.[12] In a related vein, there are relevant aspects of the ‘small- c’ constitution pertaining to the regulation of public law organs, or the connection between such organs and their decisions in relation to the individual, such as in the case of fundamental rights where instances of advice-guiding can be identified. Think for instance of (unsolicited) opinions by equality or human rights commissions on proposed or existing legislation. For those interested in the study of constitutional advice, we therefore advocate a generous understanding of constitutional law to properly appreciate the content range across which advice can function and apply.
1.2