Introduction
Film has the unique potential of shaping shared global understandings of certain concepts, in ways that scholars can only dream of. The 1972 blockbuster The Godfather is a case at hand.
‘The Godfather is the I Ching, the sum of all wisdom, the answer to any question’, says Tom Hanks in the romantic comedy You’ve Got Mail, and it is in this spirit that we derive from the Godfather the notion of the consigliere. In normal Italian parlance, the word simply means advisor. However, in the context of the Mafia consiglieri are close, trusted advisors of the leadership. Depicted as a wise but outsider ‘elder statesman’ to Don Corleone, the consigliere in the movies serves as the voice of reason within the family, functioning well outside of the vertical power structure of the mob organization.The concept of the consigliere may usefully be compared to courts advising political actors on a range of constitutional issues. Obviously, judges are a far cry from the kind of consiglieri as depicted in The Godfather. And yet there are similarities. Courts enjoy a relatively high degree of public trust, at least in most western liberal democracies. This confidence might be explained by two factors: integrity and expertise, which makes them useful sparring partners for legislators faced with difficult decisions concerning constitutional change.
It should thus come as no surprise that some of the most powerful statements of constitutional law are the result of advisory opinions. Among these are the illustrious Quebec secession and Re Same sex marriage opinions of the Supreme Court of Canada (SCC).[848] Equally well-known are the advisory opinions of international courts on matters, such as the lawfulness of nuclear deterrence.[849] Less known perhaps, but arguably no less significant, are advisory opinions of the supreme courts of (for instance) India and Kenya.[850] And only last year, the Florida Supreme Court issued a highly controversial advisory opinion on a constitutional amendment aimed at restoring voting rights for prisoners.[851]
European constitutional law—whether one takes the perspective of the EU, the Council of Europe, or domestic law—is no exception.
The European Court of Justice’s (ECJ) famous rulings on the accession of the EU to the ECHR immediately spring to mind.[852] Indeed, its advisory power has enabled the ECJ to engage in foundational debates about the nature of the EU legal order.[853] Moreover, the introduction of protocol 16 to the ECHR illustrates that advisory jurisdiction gains traction in Europe.[854] The situation with respect to domestic courts is more diffuse, with some constitutional courts enjoying advisory jurisdiction while others do not.[855] Still, it seems fair to say that judicial advice has significantly contributed to the shaping of constitutional law in a substantive number of liberal democracies around the world.It is thus to some extent remarkable that the concept of judicial advice-giving is still somewhat obscure.[856] Although there is a growing body of literature on judicial advice in general and advisory jurisdiction specifically, there is no consensus on how to delineate, let alone evaluate the concept of judicial advice.
The purpose of this chapter is to show that defining constitutional advice giving is not as straightforward as it might seem. We argue that existing doctrinal analysis fails to fully capture the rich variety of judicial advice-giving, which includes many more forms than formal advisory opinions alone. Moreover, we submit that this narrow focus leads to a static approach of the concept: ignoring the different contextual and institutional settings in which judicial advice is requested. Our remedy would be to advocate a broad functional definition, in which judicial advice-giving is approached as a communicative act within a continuous interaction between courts and policymakers (Sect. 11.2). On the basis of this broad definition, we conceptualize judicial advice-giving along the different functions it may perform, both from the perspective of law-makers and of courts themselves, and on the basis of a comparative typology of the various forms of advice-giving (Sect. 11.3). By connecting function to form, we attempt to show that the normative evaluation of judicial advice-giving requires a nuanced approach, moving beyond the binary question whether or not advisory opinions can be squared with the separation of powers. To that end, we briefly sketch the reluctance of legal systems in adopting advisory jurisdiction (in a formal sense), showing its controversial nature throughout legal history (Sect. 11.4).
We conclude with a plea for a more strategic approach to judicial advice-giving by courts, calling upon them to recognize the variety of forms and functions of advice, which may enable them to devise opinions that are sensitive to political and constitutional concerns.
11.2