The Challenge of Constitutional Advice: Reckoning with Ubiquity?
Modern-day constitutions, however they manifest, are increasingly used to regulate legal processes and inform political debates. By way of example, consider the increasing reliance on judicial review in many jurisdictions in vindicating constitutional guarantees, notably those laid down in the bill of rights.
The recent Urgenda case law in the Netherlands is a good example of judges using fundamental rights to hold political institutions to account for the failure to give adequate effect to commitments to combat climate change through a solid emissions policy.[20] Such cases, dealing with issues that have far-reaching sustainability and inter-generational consequences, are not the exception either, as the pending case on climate change against 33 countries before the European Court of Human Rights shows, among others.[21]When issues of such importance are on the table, the constitutional as well as societal stakes become very high. Consequently, the responsibility resting on decisionmakers confronted with such questions turns into a particularly heavy one. In debating and answering these and other questions on interpreting and applying constitutional norms, the role of advice becomes particularly salient to ensure that laws are made in a manner that takes due account of the relevant constitutional imperatives and possibilities. The same can be said about advice in the complex field of constitutional reform and drafting, when we see that the pace and volume of amendments or overhaul has increased manifold since the last century. It is in this context that scholarship, as evidenced by the rich contributions to this volume, needs to be brought into play to grapple with the dimensions of constitutional advice as outlined in Sect. 1.2.
This requires scholars to look beyond the law and binding legal norms to more diffuse forms of normative guidance.
In the concluding chapter to the volume, Willem Mingelen and Jerfi Uzman (Chap. 11) give a first impetus to this when it comes to advisory opinions issued by courts. Taking a broad, functional approach, they conceptualise judicial advice-giving as a communicative act by which courts contribute to the process of law-making on the basis of judicial authority and persuasion. In order to capture the rich variety of this form of constitutional advice, the authors develop a framework on the basis of three variables: the functions advice may play in the process of law-making, the types of advice involved, and the different institutional modes of judicial advice. On the basis of such an inventory, further research could be carried out into the subtle links between the objectives, content and effectiveness of the judiciary’s advisory services.Reckoning with the reality and relevance of constitutional advice also entails studying novel questions about the nature of constitutional advice itself. For instance, does ‘advice’ remain an appropriate moniker if the recipient habitually heeds the guidance provided, thereby potentially creating a constitutional custom or expectation of the advice binding that recipient, despite its formal non-binding character? And, returning to the first distinction introduced in Sect. 1.2, while advice in the national context is often a function of a formalised legal order with its own institutions and rules, the question about the nature of advice in the transnational arena is still very much debated. Consider for instance Ginsburg’s work on the question whether advice beyond the state has come to constitute a distinct Transnational Legal Order as such.[22] As he asks, has transnational advice developed into ‘a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions’?[23]
The study of these and related questions will not only help us to understand and improve the rendering of constitutional advice in given instances and so strengthen the rule of law, but its academic study will also help us to better chart and improve the field of advice as a topic in its own right.