Demarcating Advisory Opinions and Judicial Advice

So what are we talking about here? We first need to be clear about the different terms we use. Thus far we have applied the terms ‘judicial advice’, ‘advisory opinions’ and ‘advisory jurisdiction’ more or less interchangeably.

We first distinguish between the concept of judicial advice(-giving) on the one hand, and (judicial) advisory jurisdiction and opinions on the other. The first notion is broader than the second two. As we will see, judicial advice-giving takes many shapes: it may be the result of exercising a specific power to issue advisory opinions. This is the case when for instance the supreme courts of Canada or Kenia rule on a reference about the constitutionality of legislation, referred to them by the government. But judicial advice can also be the by-product of the more traditional task of adjudication. A court may for instance, in the context of applying a certain norm, consider that it would be better for the legislature, to modify this norm in view of impending incompatibility with constitutional values.^[857] In both these cases, the advice was part of the exercise of a judicial power. It is however also possible for judges to issue advice outside their formal role as part of a court of law. They may express their advice on conferences or sit on an advisory board tasked with counselling the government on law-reform. That could also be labelled ‘judicial advice’, but it is offered extrajudicially and it is not a formal ‘opinion’ in the legal sense of the word. In this contribution, we focus specifically on courts issuing advice in the context of exercising a judicial power, so that when we talk of judicial advice, we do so in the narrower sense of courts offering advisory opinions within the context of a judicial power, whether this concerns an advisory or an adjudicative power.

Secondly, we talk of advisory opinions and ‘advisory jurisdiction’. Some authors recognize a substantive difference between the two concepts. Thus, for instance, Adem Kassie Abebe and Charles Manga Fombad suggest that advisory opinions are non-binding while ‘advisory jurisdiction’ covers both these non-binding advisory opinions and binding judgments following from the kind of abstract review proce­dures that many European ‘Kelsenian’ constitutional courts are charged with.^[858] As we will argue below, this distinction is tied to the assumption that advisory opinions are always non-binding, which we think is problematic. Rather we propose a different, a functional^[859] criterion. We would submit that advisory opinions are substantively the same as advisory jurisdiction in the sense that we would define the latter as the formal power to issue the former. However, to avoid confusion, we should stress that one might distinguish between a traditional (or strict) understanding of advisory opinions, and a broader version. Advisory jurisdiction is tied to this stricter version, whereas it is possible, as we argue below, to recognize that courts frequently offer judicial advice (which we would also call advisory opinions lato sensu) in the context of their adjudicative function as well.

Having distinguished between the concepts of judicial advice, advisory opinions and advisory jurisdiction, we have thus far have said nothing substantively on what actually constitutes ‘advice’ and thus sets advisory opinions apart from other judicial decisions. Let us now turn to that issue.

11.2.1 Defining Advisory Opinions

One might have thought the definition of advisory opinions to be straightforward. Advice, according to the Oxford Dictionary, is ‘an opinion given or offered as to what action to take; counsel; recommendation’. It is often considered to be noncom­mittal. Black’s Law Dictionary thus defines ‘advisory opinions’: as ‘non-binding statements by a court of its interpretation of the law on a matter submitted for that purpose’.^[860] However nothing is what it seems in constitutional law.

11.2.2 The Non-binding Thesis

‘It is a basic truth that advisory opinions have no binding force’ contends Karin Oellers-Frahm in her valuable contribution about advisory opinions in international law.^[865] On a similar note, Abebe and Fombad note that advisory opinions are ‘often’ considered purely consultative, and thus non-binding.^[866] This approach to advisory opinions has the advantage of connecting to the general understanding of advice as recommendations.^[867] In the legal-constitutional context, however, this non-binding thesis is problematic^[868] if only because there are jurisdictions in which opinions, generally considered to be advisory, do have binding effects. The ECJ’s opinions concerning the EU-constitutionality of envisaged international agreements are regu­larly called ‘advisory opinions’.^[869] Yet Article 218-11 TFEU explicitly stipulates the impossibility of entering into agreements the Court has found to be contrary to the EU Treaties: a clear indication that the Court’s opinions are not so noncommittal as regular terminology would suggest.

Moreover, in jurisdictions which do not explicitly grant legal effects to advi­sory opinions, courts often suppose their rulings to be authoritative. The Federal Constitutional Court of Germany (FCCG) noted for instance that its advice was more than a mere collection of individual views of its judges.^[870] Like its judgments, its advisory opinions were based on an interpretation of the law and as such were part of the Court’s interpretative mandate. The non-binding thesis thus assumes a false dichotomy. The general interpretations of constitutional norms courts formu­late when exercising advisory jurisdiction are usually considered to have become res interpretata and will thus be followed in subsequent judgments.^[871] These judgments, in turn, create obligations for other actors. Moreover, it is sometimes possible that mere ‘advisory’ powers gain quasi binding force by way of a constitutional conven­tion. Such a convention is arguably developing in the context of s. 4 of the UK Human Rights Act, which enables British courts to make a (formally non-binding) declaration of incompatibility with respect to legislation they consider to be violating ECHR-norms.^[872] It would of course be possible to exclude all these examples of the scope of advisory opinions, however to say that an opinion is no longer advisory because it has legal consequences, would greatly diminish its descriptive force and would, as we have noted, not connect to legal practice.

11.2.3 The Abstract Review Thesis

A popular alternative to the non-binding thesis is to focus on the abstract nature of the opinion. For Aust, for example, the difference between ordinary and advisory jurisdiction, is that the former is about actual cases whereas the latter is about abstract interpretations.^[873] Others also seemingly adopt this view when referring to German and French abstract review procedures as advisory opinions.^[874] This is understandable given the history of advisory opinions in some high-profile courts.

First, focusing solely on the abstract nature of the case would greatly stretch the meaning of what counts as advice. An integral part of the jurisdiction of Kelse- nian constitutional courts would suddenly become ‘advisory’.^[876] That would not be problematic, were it not for the fact that those courts themselves usually deny their judgments to be advisory. And they would have a point, given the fact that the gap between the legal and the linguistic meaning of the term ‘advice’ would be greatly widened. Particularly because in linguistic terms, the non-binding nature of advice is far more important than the level of abstraction. In day-to-day business, it is quite possible to ask or give advice on very specific matters. ‘Am I doing right in marrying this girl or not?’ is a specific question without the interlocutor doubting that what is asked for, is advice.

The abstract review thesis is not only too broad, it also comes with a cost. Some cases that may be advisory under the non-binding thesis, will not be considered advisory under the abstract review thesis. Consider s. 4 of the UK Human Rights Act 1998, which introduced the power for British courts to issue a so-called declaration of incompatibility (DOI). Such a declaration neither binds the litigating parties, nor the government or the legislature. Although it is perhaps not straight-forward to think of DOIs as advisory opinions, they have sometimes been qualified as such.^[877] Under the abstract review thesis, however, these DOIs are not a matter of advice at all because they arise from adjudicative procedures involving concrete facts. As we will argue below, however, DOIs perform a distinct advisory role within the constitutional process and there is thus something to be said, to include them here.

The more fundamental reason why the abstract review thesis is flawed, is because of the false dichotomy it presupposes, between on the one hand advisory opinions and on the other hand what is considered to be the ordinary task of judges, which is to adjudicate between adversarial parties. That may indeed usually be the case for civil, criminal, or administrative courts and perhaps even more so in the Anglo- Saxon world (which has of course greatly shaped our understanding of advisory jurisdiction), but it is not a necessity. As the FCCG once pointed out, things are different for Kelsenian courts. The rationale for these courts is not the adjudication of subjective interests, but rather the protection of the integrity of constitutional law as such.^[878] It is in this spirit that Hans Kelsen famously labelled constitutional courts as ‘negative legislatures’.^[879] It is also reflected in the French distinction between recours objectif and recours subjectif, the latter being the dominant configuration of Anglo- Saxon judicial systems, whereas the former is still influential in continental Europe. If abstract review is part of the ‘regular’ judicial task, the conceptual distinction between abstract and concrete review is less relevant for distinguishing between what is part of ordinary jurisdiction and what falls outside that jurisdiction and must consequently be considered an advisory opinion.

11.2.4 Towards a Functional Approach

This all is not to say that there is no value in either the non-binding or the abstract review thesis. Their inadequacy is that they fail to connect to what in legal practice are usually considered ‘advisory opinions’. The problem is that legal practice across many very different jurisdictions is far too complex to be captured by one single dogmatic feature. Indeed, it seems that legal dogma itself is unsuited to explain the concept of advisory opinions. This is because advice-giving is not a legal but a social construct, a practice of courts performing a specific function within the process of law-making. The legal form of advice, and therefore also its legal effects, is less important than the fact that judicial advice giving is part of a broader social structure of law-making.

We would therefore advocate a functional approach to defining judicial advice. The beginnings of such an approach may be found with political scientist (and illus­trious mountaineer) Albert Ellingwood’s work on advisory opinions, which he under­stood to be: answers provided by a court to questions posed by the executive or the legislature on a legal question pending before that authority.^[880] This definition focuses on function rather than legal features. It accentuates the fact that there is a legal conundrum that needs to be solved and for which advice is asked. However, we might broaden it so that it also encompasses unsolicited advice aimed at resolving a legal question. The functional approach we advocate focuses on judicial advice as part of a process of policy- or (constitutional) law-making. Advisory opinions are judicial findings which enable political actors to make informed decisions with a view to constitutional values. Judicial advice-giving usually occurs prospectively and is typically not directed to remedy past harm or provide injunctive relief.^[881]

It might surely be objected that this functional definition is rather broad, perhaps even too broad for firm legal analysis. We acknowledge this. And yet if our objective is to properly understand advice-giving as a process (as opposed to a specific judicial power), we need to cast the net wide. Moreover, any meaningful assessment of that process in terms of legal legitimacy or compatibility with certain doctrines, such as the separation of powers, warrants such a broad approach. It is all very well to define advisory opinions exclusively as non-binding or abstract decisions by courts, thus excluding, as we have seen, some notable examples of judicial advice. But any conclusion we might reach as to the legitimacy of these decisions is pointless given the fact that reality includes many more shades of grey: opinions which may be more of less binding, or which may formally be grounded in a concrete case but really concern a rather abstract question.^[882]

We thus propose to delineate the functional approach along different lines. If we build on Ellingwood’s admittedly somewhat vague starting point of courts answering legal questions posed by political actors or on their own initiative, we might introduce two elements drawn from a philosophical approach to the concept of advice which we believe may enrich the legal debate about advisory opinions. In this approach, advice is understood as ‘a communicative act’ in which the acceptance of a certain view is recommended. The defining feature of advice and its characteristic aim is thus acceptance of what is advised.^[883] Acceptance largely depends on the ability to persuade, which in turn may depend both on the characteristics of the adviser (the degree of trust in, or the authority of the adviser), and the reasoning of the advice. Applied to the judicial process, we would observe that courts enjoy a certain authority when it comes to interpreting the law. Moreover, advisory opinions, as we will see below, are usually styled as judgments, applying a judicial mode of reasoning. This leads us to the following definition of advisory opinions: communicative acts involving courts as institutions, in which they contribute to the process of law-making either by cautioning against or recommending future legislative or governmental action, the persuasive force of which depends on the authority and the reasoning of the court in question.

This definition is thus a substantive one, focusing on the content of the judicial communicative act and the characteristics of the adviser. It says little about the legal status of the advisory opinion, or the legal context in which it came about. We would stress that these elements are still important, and this is where, admittedly through a backdoor, the non-binding thesis and the abstract review-thesis come in again. We rejected these approaches as constitutive of what advisory opinions would be, because of the great diversity in comparative law. However, it is clear that recommendations are usually non-binding in the sense that it is the responsibility of the advisee to adopt them or not. As we will see below, there are instances in which a particular legal system attaches legal consequences to the advisory opinion, or that advisees consider the advice authoritative to such an extent that it becomes a self-imposed obligation for them to follow it.^[884] Our point here is that this does not necessarily mean that the judicial opinion is no longer to be regarded as advice. After all, the function of the judicial opinion has not been changed.

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