In this issue of Utrecht Law Review, Maarten Feteris, former President of the Supreme Court of the Netherlands (Hoge Raad), presents a Roadmap on the judicial use of comparative law.1 The Roadmap was developed within the framework of the Network of Presidents of the Supreme Judicial Courts of the European Union (hereafter: the Network). This association, which exists since 2004, aims to bring European supreme courts closer through discussions and exchanges of ideas as well as to offer a forum through which European institutions can ask these courts for their opinions on specific topics.2 Regarding the Roadmap, Feteris explains that ‘the aim was to develop a document which can be helpful for the courts in the Network in a practical way when considering and implementing the use of comparative law.’3 As a reason for engaging with this matter, he mentions: ‘The use of comparative law by judges implies that judges, when making a decision on a controversial legal issue, look (amongst others) at the solutions which have been chosen for similar problems in other legal systems.’4
The request to publish this Roadmap is an interesting development. After all, its primary audience are judges and the stated aim regarding the document is to provide guidance to them. Yet, several possible reasons which justify a broader distribution come to mind. Firstly, the publication enables other legal communities, such as lawyers and legal scholars, to gain insight into the working methods of the supreme courts and to use this information in their own activities, for example, the preparation of arguments by lawyers or the critical analysis of judicial decision-making by scholars. Secondly, the publication of the Roadmap allows the wider society to obtain an understanding of judicial functioning in a contemporary globalised context. In this regard, the publication fits in a more general trend concerning demands of transparency and accountability of institutions as a basis for their legitimacy.5
The publication of the Roadmap thus invites us to travel along with the judges in their comparative-legal journeys. In order to optimise the travel experience of readers of the Roadmap, the next sections contain a brief reflection on the visited landscape of transnational judicial communication (Section 2), the possible ways of reading the Roadmap (Section 3), and brief concluding thoughts regarding the road ahead (Section 4).
2. The Landscape of Transnational Judicial Communication
In his introduction to the Roadmap, Maarten Feteris demonstrates awareness of debates regarding the legitimacy of judicial recourse to comparative law.6 Indeed, the use of comparative law by courts has prompted a stream of academic analyses since the 2010s, in which the normative and societal justifications of this practice are discussed. This practice falls under the wider conceptual umbrella of ‘transnational judicial communication,’ which concerns the exchange of legal ideas between judges from different legal orders through the study of laws and case law (judicial comparativism) as well as through interactions in inter alia bilateral meetings and judicial networks (judicial networking).7 The judicial use of comparative law has been a central object of scholarly analyses because of the intricacies regarding its role and meaning in judicial decision-making. It has also provoked sometimes heated societal discussions. As an extreme example, the politicisation of comparative outlooks to other legal systems resulted in death threats to the US Supreme Court Justice Breyer and the late Justice Bader Ginsburg for going against the idea of exceptionalism of the US legal system.8
A main reason for the controversy surrounding the judicial recourse to comparative law concerns disagreement about the sources which can inform judicial decision-making and the weight of these sources in the reasoning of judgments. Opponents take positivist or originalist views on judicial interpretation. From a positivist perspective, judges can consider only legal norms with a formal status in the hierarchy of norms of the domestic legal order in their deciding of individual cases. This excludes references to laws and case law from other legal systems when interpreting domestic legal norms. In an originalist view, as supported by the late US Supreme Court Justice Scalia, comparative law should not be taken into account in constitutional interpretation, furthermore, because – with the exception of still applicable old English precedents – it was not available as a source of reference at the time of drafting of the Constitution. Those with a favourable outlook on the use of comparative-legal references focus on the substantive quality of judicial argumentation, which involves its soundness, clarity and persuasiveness. In this perspective, judges can learn from the legal interpretation developed by their peers in other countries in cases where a similar legal question was at stake. Comparative-legal insights then have a relative weight in the substantive reasoning of a judgment, without being decisive for the judicial decision.9 This view acknowledges that foreign insights in principle cannot determine a domestic judgment because of differences relating to the historical and societal contexts of legal systems and the principles and policies which underpin those legal systems.10 The Roadmap fits in with this justification by describing the impact of comparative-legal analyses as mostly inspirational and additional to the judicial reasoning of a supreme court. Comparative law is possibly decisive only in a situation of interpretation of a legal norm which is shared between legal systems based on historical connections.11
For all the attention paid to judicial uses of comparative law, it is important to realise that the practice itself actually occurs in a relatively small amount of cases.12 Generally, these are ‘difficult cases’ in which there is a need for judicial interpretation of laws in order to reach a decision in the case at hand.13 The practice is popular in cases in which courts are confronted with a novel legal question and/or a sensitive societal issue and when similar cases have occurred already in other legal systems. As an example, comparative-legal references can be found around the world in cases on civil responsibility for ‘wrongful life.’14 Also, judges sometimes use comparative-legal references as a means to align their interpretations with foreign peers in the framework of implementation of international treaties or participation in a supranational legal order such as the European Union.15 The use of comparative-legal references is most common in supreme courts for a number of practical reasons, including the amount of cases which require judicial interpretation of laws and the availability of research support to conduct comparative-legal analyses (although references can be presented also by parties and their lawyers or by amici curiae).16 Still, since there is no denying that practices of comparative analysis of case law exist and raise questions about dos and don’ts in many supreme courts, there is value in providing courts with ‘a systematic roadmap for a more or less conscious decision-making process.’17
3. Reading the Roadmap
Maarten Feteris indicates that the Network did not strive for ‘completeness or scientific reliability’ when developing its Roadmap on comparative case law.18 The document was compiled on the basis of input from a questionnaire which was filled out by the Supreme Courts who participate in the Network, a General Report written by Feteris based on the analysis of the submitted answers, the discussion of this Report in the Network, and a review of academic literature.19
Scholars reading the Roadmap might be tempted to criticise aspects of the methodology employed for the drafting of the Roadmap. For example, the questionnaire does not specify what is meant with ‘the comparative law method.’20 With regard to the qualitative empirical analysis, the published document does not clarify how many answers to the questionnaire were obtained and to what extent the answers varied between courts based on particularities of their legal system or societal context.21 Finally, the literature review addresses trends regarding the use of comparative law by courts, but includes less information about actual judicial strategies and methodological concerns with regard to comparative-legal analysis.2223 Because of these methodological issues, some doubts could come up regarding the actual practical guidance which the Roadmap is able to provide to supreme court judges across Europe.
Yet, these scholarly concerns are likely to hold more relevance for academic debates than for the practical reality of supreme courts. In this regard, Jaakko Husa’s typology of different weight-classes of comparison provides a helpful clarification on possible degrees of systematic and interdisciplinary analysis in comparative-legal research.24 A heavyweight comparison is the go-to method for comparative-law scholars and allows them to explain similarities and differences between legal systems. A middleweight comparison is suitable for knowledge building in a specific field of law, while a lightweight comparison enables finding the ‘most fitting’ model for an endeavour of legal harmonisation. A featherweight comparison is functionalist and non-systematic in nature. It concerns a collection of comparative-legal information which can serve as an inspirational source or a persuasive element in activities in legal practice, for example, proposals for law reforms or judicial decision-making.25 Judicial references to comparative law fit with this last category in the typology. In a featherweight comparison of foreign laws and case law, it is acceptable if the presentation of outcomes concerns only a selection which is deemed to best serve the goals of inspiration and persuasion. Also, it is not problematic if in this comparison there is an emphasis on similarities rather than on differences between legal norms and contextual aspects of the compared systems.
When focusing our attention on the content of the published Roadmap, it is interesting to notice that the presented tips, insights and recommendations correspond well with conclusions of scholarly research on the methodology of judicial references to comparative law. Tips focus on the selection of countries for a comparison and principled and practical concerns when conducting a comparative-legal analysis to inform judicial decision-making.26 Core insights concern the importance of avoiding (the appearance of) ‘cherry picking’ in the use of comparative-legal references, explicit reflection on the reasons for giving priority over one foreign system above another (e.g. ‘closeness,’ most persuasive reasoning, uniqueness of a foreign solution), and the acknowledgement of comparative-legal references in relation to the style of judicial reasoning of a specific supreme court.27 As a recommendation, the Roadmap highlights the importance of clear and transparent judicial decision-making. It advises the Supreme Courts in the Network to explain their choices when engaging in comparative-legal analysis, both regarding the included legal systems in a comparison and the selection of systems which appear in the judicial reasoning based on this comparison.28
4. The Road Ahead
In sum, the Roadmap on comparative law brings judicial recourse to comparative law a step further into the mainstream of approaches to judicial decision-making. The publication of this document underlines that transnational judicial communication has become part and parcel of the activities of supreme courts, especially in a context of regional legal integration such as the European Union.
Yet, developments which have occurred in recent years give rise to concerns regarding the future of both judicial comparativism and judicial networking in this European context. Indeed, the rule-of-law backsliding in Hungary and Poland has put pressure on the ambition at the basis of the European cooperation, that is, to realise ‘an ever closer union’ among the Member States. Concerns of systemic threats to judicial independence have already led to refusals of judicial cooperation with Poland in European Arrest Warrant cases29 and to the suspension of the Polish National Judicial Council’s membership of the European Network of Councils for the Judiciary.30 These developments could affect meaningful transnational communication between courts in Europe, which requires consensus on fundamental values (comparativism) and a willingness to learn about and share legal ideas and practices (networking).
In this context, the Roadmap as well as other activities of the Network of Presidents could help to enhance the quality of judicial decision-making and support dialogues between courts from different countries and between courts and other audiences (lawyers, academia, wider society). The publication of the Roadmap makes it possible to travel onwards with a clear and transparent frame of reference for all.