The Legitimacy of Judicial Advice-giving

The previous section showed that judicial advice-giving may perform many different functions, and may take many different forms. What is the use of that analysis? Our hypothesis here, is that distinguishing form and function, may help us to better assess claims about the legitimacy of advisory opinions and judicial advice-giving more generally.

11.4.1 Three Narratives

Judicial advice-giving is a Janus-faced phenomenon. It is both enthusiastically embraced and bitterly rejected. To be sure, the concept itself has ancient roots in the Anglo-Saxon world. It goes back to medieval times, when English judges acted as trusted advisers to the Crown and Parliament.^[933] That was not particularly problem­atic in these days given the fact that the entire spectrum of governmental powers still resided with the sovereign king.^[934] In later centuries advisory jurisdiction gradually declined with the gradual emergence of separation of powers theories.^[935] It residu­ally survived only in the form of a rarely used advisory competence of the Judicial Committee of the Privy Council and a constitutional convention that Parliament may ‘ask the judges what the law is in order to better inform itself whether and how the law should be altered’.^[936] However by then it had already migrated to other parts of the English empire. Some former colonies, such as India, Canada, South Africa, and even a number of American states still recognize advisory jurisdiction today.^[937] However, as separation of powers theory gained traction, it sparked a division between two Anglo-Saxon narratives.

The Canadian narrative mirrors the American attitude. Although its Supreme Court was granted advisory jurisdiction from the outset in 1875, it was originally controversial.^[942] That it ultimately flourished can partly be explained by political circumstances, involving the struggle between Canada and Westminster.^[943] More importantly, however, Canadian constitutional law displayed a rather more prag­matic approach to the separation of powers than its American counterpart.^[944] As the Supreme Court noted in its 1998 Quebec Secession Reference, the Canadian Consti­tution ‘does not insist on a strict separation of power’ and thus ‘parliament (...) may properly confer other legal functions on the court. ’^[945] This pragmatic approach ulti­mately facilitated the emergence of constitutional dialogue theory as an alternative understanding of the separation of powers as a tool of interaction. It is this theory that has shaped Canadian constitutional law perhaps more than any other.

Meanwhile, a third narrative developed in Europe. Like Canada, most European states display a more relaxed relationship to the separation of powers. However, Europe took yet another road. Many European countries ultimately ended up with centralized review by a ‘Kelsenian’ constitutional court.^[946] It was clear from outset that the European model differed substantially from the decentralised American model of judicial review.

Why did advisory jurisdiction not flourish in Europe, the way it did in Canada? The answer may, in part be found in the very possibility of abstract review. This was for instance the case in Germany.^[952] The mere possibility of abstract review takes away many, though arguably not all, of the incentives for advisory jurisdiction. The same can be said for yet another typically European institution, the existence of councils of state and legislative councils (such as the Swedish Lagrddet), which perform important advisory roles.^[953] However, the existence of abstract review was not the only reason to withhold advisory powers. In Germany, for instance, advisory jurisdiction was rescinded because it was considered to be incompatible with the judicial function, which was to decide ‘controversies’ (‘Streitfalle’).¹⁰¹ This more fundamental rationale at least seems a trace of American thinking, a modest indication of the fact that the U.S. left its mark on the shaping of constitutional justice in Germany, and more broadly, in Europe.^{[954] [955]}

11.4.2 Constitutional Concerns

The previous section made clear that judicial advice-giving, at least in its formal version, is still considered to be either incompatible with the judicial function, or at the very least imprudent.

Let us start with the most powerful objection to advisory opinions. As we have seen, the U.S. Supreme Court’s refusal to opine at the request of the government was underpinned by separation of powers concerns. The idea is simple: intermingling of the judicial and the political branches is prohibited by a strict understanding of the principle. A similar view enabled the demise of judicial advice-giving in the UK from the 18th century onwards.^[956] We might call this a ‘pure’ version of the separation of powers, focusing on a strict understanding of the ideal that ‘each branch (...) must be confined to the exercise of its own function and not be allowed to encroach upon the function of the other branches’.^[957] Judicial advice-giving is thus seen as to encroach on the core functions of the legislative and executive branch.^[958] As we have noted before, this strict approach towards advisory jurisdiction has had significant influence in other jurisdictions as well, even though it is certainly not universally shared as the Canadian example in the previous section showed.

What is striking is that American (federal) separation of powers-approach seems largely to focus on two elements: the fact that advisory opinions may lack a clearly framed, concrete case, which necessitates a court’s involvement, and the absence of adversarial proceedings in advisory opinions.^[959] The first element (necessity) is tied to concerns about judicial supremacy and a specific vision of the courts as providers of individual justice. Both these elements carry some force in other juris­dictions as well, but as we will argue in the next section, they are somewhat at odds with some more recent developments connected to the judicial function.

The second element, the absence of adversarial proceedings, basically displays the same flaw. The idea is that the adversarial process connects legal questions to the real world.^[960] Moreover the quality of the judicial decision to a large degree depends on challenge and response, claim and denial, as exhibited in a regular lawsuit.^[961] This merits serious consideration. We would even add the element of transparency. Adjudicative procedures traditionally contain important safeguards with respect of the openness of judicial decision-making. However, we would add that it makes a crucial difference, which of the types of advice, as set out in Sect. 11.3, we are dealing with. It is clear that the procedure followed by the Supreme Court of India, which connects to its broad experience with public interest litigation, is less likely to attract this kind of criticism than the practice of some courts to issue an advisory opinion without any hearing or even any kind of procedure at all.

The second objection concerns judicial independence and, connected to that, the judiciary’s public reputation. Exercising advisory powers raise the question whether judges can still be considered to be fully independent in subsequent cases. This concern has been particularly visible in the context of the debate about the combi­nation of adjudicative and advisory functions in the Councils of State of several European states.^[962] It can, however, also be discerned in the case law of courts, even in those jurisdictions which may be considered to be receptive to advisory jurisdic­tion. Moreover, advice-giving is sometimes considered to undermine the independent and non-political reputation of the courts.^[963] This argument works in two ways. On the one hand, the non-binding nature of advisory opinions suggests that political actors may simply ignore court advice. This could erode judicial authority, or so the narrative goes.^[964] On the other hand, judicial authority could also be grudgingly respected but in the long run would suffer because of the effects of possible politi- cization.^[965] With anti-court and anti-establishment feelings on the rise, courts may be fearful of becoming a target of populist backlash. When courts quasi join the civil service in a Department of Law-making, they fuel this kind of rhetoric.

To be sure, many of these concerns can be either countered or nuanced from a theoretical perspective, or by the assertion that there is insufficient empirical evidence of such a development. Moreover, one might question whether debates about judicial independence and reputation truly relate to advice-giving. Again, we would submit that much depends on the function and the content of the advisory opinion in a given context. Our analysis in Sect. 11.3 yielded both threats and possible remedies in that respect. Rather than seeking only clarification, political actors may attempt to enlist courts in validating their own views. This is not illegitimate per se. Yet courts should be conscious of the underlying rationale for such a request. It is clear that validation serves the interests of a particular institution rather than the law-making process itself. As we observed, it is a political rather than a deliberative exercise. The traumatic experience with the short-lived advisory power of the FCCG shows that the pursuit of validation by governments can indeed draw the courts into areas of political manipulation. They should steer well clear of that.

This is not to say that courts should never entertain a request involving a degree of validation. In many cases validation and (the need for) clarification run parallel, and judicial consultancy may thus be justified. In those cases, the content of the advice is a tool for courts to mitigate any political side-effects. Recommendations for or against that are clearly rooted in established interpretations of the law or legal precedent may be less problematic from the perspective of politicization and reputation. Conversely, when courts are entering uncharted territory, a less substantive approach, in which they limit themselves to the kind of decision support we mentioned in Sect. 11.3 seems preferable. Much can and should be said on the issue but this already too lengthy contribution is not the place for that. It requires thorough research. Our only aim here is to argue that a functional approach provides a more fertile ground for analysis than sweeping statements about the judicial function, independence and the separation of powers.

11.5