The Unity of Law I: Blogging about the unity of law? The kick-off

Eddy Bauw

The kick-off

Let me get straight to the point. The aim of this blog is to start a series about the ‘coherence of law’. The idea to do this arose after a session of the Montaigne Centre in July about this theme. During the session it became clear that the participants had rather different opinions about the function and importance of the coherence of law. It seems worthwhile to further explore these differences in order to identify the various aspects related to the coherence of law. This could contribute to our individual understanding and potentially lead to a common approach with a great follow-up. A series of blogs seemed like a good way to start this process.

I thought it would be good to start in this first blog with a comprehensive survey of the different perspectives from which the coherence of law can be approached. Starting from the outside we can then work towards the core. In the following I give an initial attempt to such an exploration of the field. While doing so I will also take into account recent developments. It is in my opinion more important to name the different perspectives and interests in this blog than delving into the content of the subject. For the latter a blog is not a suitable approach.

Perspectives on the coherence of law

From the legal perspective the importance of the coherence of law is a given as guarding the coherence of law is an explicit legal order for the highest judges. That order is so fundamental and self-evident for the functioning of each legal system that we usually spend very few words on it. Without a highest court of law to take a decision on legal questions, the consistency within the law cannot be guaranteed. To be more specific, important legal principles such as legal certainty and legal equality cannot be assured without the coherence of law. In view of the obviousness of the importance of the coherence of law, the debate about it relates mainly to the planning and organizational issues, which incidentally, in turn, do indeed concern matter of principle. A current issue is of course the set-up of the highest administrative courts, for which we could easily establish a separate series of blogs. Another issue which has been dragging on is that of the legitimacy and binding force of the collegiate agreements between judges and other coordination mechanisms, which have emerged to achieve coherence of law in matters that do not lend themselves for review by the highest courts or against which no appeal is possible. On this topic numerous dissertations have been published over the years. Topics which have gained the most attention in this regard are the maintenance norms, the sub-district court formula in severance payments and the sentencing orientation points. The discussions on this issue focus on whether the court is not treading on the position of the legislature and whether judges are sufficiently equipped for these standards.

An approach from the societal perspective focuses more on the importance of the coherence of law for the citizens’ trust in the judicial system and the rule of law. The prolonged existence of different decisions concerning the same legal questions – especially when the judgments are socially relevant – can undermine the credibility of the judicial system and the law for the citizen. For example, the fact that it took such a long time before there was any clarity about the legal completion of the thousands of Dexia claims, has done little for that trust. That affair was partly the reason to accelerate the process of answering questions of law by the highest instance court by introducing the possibility of preliminary questions to the Dutch Supreme Court. With the answers to those legal questions lower courts can expeditiously resolve the – many – cases in which the legal question is raised, without a series of contradictory decisions or undue continuance while waiting for years of procedure in appeal and cassation, as was the case with the Dexia claims. Although the evaluation of this legislative amendment has not yet taken place, there has been a lot of enthusiasm about the positive effects. The House of Representatives has asked for a mid-term evaluation with the view of extending the instrument to tax law and criminal law. When it comes to tax law, they did not even want to wait for the mid-term evaluation as there is already a legislative proposal at the Council of State. Another issue in which the societal trust plays a role is the consistency in sentencing. Striking differences in sentencing for the same offences proved give the impression of arbitrariness and are difficult to explain to suspects and society. For all the areas of law the digitization of decisions has made comparison easier and differences come to light sooner.

Looking from an economic perspective, then the coherence of law for the predictability of the outcome of recourse to the courts is paramount. The law is an important co-determinant of economic activity. Citizens and companies act on estimations, such as the possibility of obtaining a license or the effectiveness with which agreements can be enforced if a dispute arises over a contract. For these estimations predictability is of great importance. A high degree of predictability promotes economic activities. Additionally, predictability reduces the (transaction)costs to be incurred in the event of a dispute. After all, the clearer it is what the outcome of proceedings before the courts will be – and the coherence of law always play an important role herein –, the faster parties will work it out together to avoid the extra costs of a procedure. People negotiate, as we call it, in ‘the shadow of the law’. In general predictability adds to the impact of the law in the behavior of individuals and businesses. The less ambiguous standards become, the more people will allow their behavior to be determined by these standards and damage that would be the result of deviant behavior can be avoided. Thereby predictability/coherence of law adds to the deterrent effect of the law.

In the European context coherence of the law has traditionally also had a primarily economic significance. It then concerns the ensuring of a – legal – level playing field for businesses by harmonizing legislation and promoting uniform application of European law by national judges. The latter in particular by means of the – obligation – of national courts to ask questions to the Court of Justice of the European Union. With the Charter of Fundamental Rights of the European Union and the forthcoming accession of the EU to the European Convention on Human Rights the coherence of law, as is expected, will be given a more fundamental rights dimension. Similar to, but more limited in scope, the interpretation of the ECHR by the European Court of Human Rights, by which the state parties are generally awarded their own margin of appreciation.

This brief tour d’horizon, which undoubtedly leaves aside many aspects and perspectives (and to which I would like to see additions!), shows how diverse the function of the coherence of the law is, but also how essential it is to strive towards it to achieve the goals and the functioning of the law as a system. Without an acceptable level of coherence of law that legal system will produce sub-optimal results: the judicial system will be slower and more expensive, citizens and businesses will lose trust, and economic activity will be impeded unnecessarily.

Developments

It is therefore not surprising that various initiatives have arisen in recent years to promote the coherence of law. At the European level one can consider the attempts to accelerate the answering of preliminary questions. Last year it took on average 15 months and that meant a speed record. But even then it is not very appealing for national courts, who are faced with pressure to shorten their turnaround time, to submit a question the ECJ. Yet, I still do not have the idea that the threat of liability of the Member State if the national court wrongly refrains from submitting a question, as adopted in the Francovich judgement of the ECJ, plays a significant role in this consideration.

At the national level it can be established that the promotion of the coherence of law was one of the central aims of the modernization of the judiciary that was put into effect in 2002. The court management and the Council for the Judiciary were entrusted with the task of promoting the ‘uniform application of law’. Furthermore, in recent years the possibilities for the Dutch Supreme Court for the abridged dismissal of cases have been expanded so as to focus on the core tasks: promoting the coherence of law and the development of law, and the aforementioned preliminary procedure was introduced in civil law. The discussion on these interventions has concentrated primarily on the objection that it is all at the expense of legal protection in appeal cases. The recognition of the importance of the coherence of law is further reflected in the ‘Judge’s Code’ of the Dutch Association for the Judiciary from 2011. The code indicates that it is expected of individual judges that, because of the pursuit of coherence of law, they also give shape to substantive cooperation with other judges. “The coherence of law on the one hand limits the autonomy of the judge and on the other hand is an important aspect of the quality of the judiciary. The judge is aware of the importance of promoting the coherence of law by applying the law and thereby acting upon the recommendations with support among fellow judges, such as the maintenance norms and the sub-district court formula. The judge justifies his decision when he departs from such recommendations. [translation]”

Possible topics for research

With the finding that the coherence of law is a theme that is gaining importance, the question is still not answered what academia can contribute. Of course there is the usual legislative evaluation research, such as into the introduction of the above-mentioned legislation which extends more time to the Dutch Supreme Court to focus on its core tasks, such as ensuring the coherence of law. These studies are of course important, but not the most exciting ones for researchers. The latter also applies to the studies that consider the issue of the collegiate agreements between judges to promote coherence of law. As mentioned, all of these studies have found their necessary place and I see in that area no reason to set new interesting research questions. It would be interesting to research the backgrounds of the differences. These could be, for example, due to the local conditions which explain the differences. Consider, for example, the differences in sentencing in drugs cases between Rotterdam and the other courts. Because the shipment of drugs that are intercepted in the port of Rotterdam are much larger than elsewhere, then there could be a tendency at the court of Rotterdam (and we already see the signs) that a batch of drugs will less quickly be regarded as ‘large’ than in other courts, which translates into differences in sentencing. While this offers an explanation, it does not justify the differences. How would an investigation into the background and the ‘determinants’ of differences in judgements look like? And what contribution could this study offer to either reducing those differences or increase the societal acceptance of those differences?

For relevant questions I think we should particularly look at the changing societal context within which the law and the judicial system must function. When it concerns Europe I believe the question should be about the process and the pace of harmonization within the EU. For some years now we have seen declining trust of European citizens in the EU and growing political discord between Member States on issues that concern the center of the European principles. Herein we can consider the pace of unification and harmonization and thereby also the pace at which coherence of law is achieved within the EU. Should it not be further considered what scenarios there are in relation to the pace in which coherence of law within the EU can be achieved? When doing so, should we not assume broader margins of discretion for Member States and a more gradual (‘natural’) convergence of systems rather than the further development of a set of instruments aimed at a ‘top-down urge for uniformity’ from Brussels and Luxembourg? These are not only political questions. It could be considered how each of the different possible development trends could might look legally, inter alia when it comes to the instruments and their standards.

For the rest, I wonder about the following questions/topics. What is the relationship between societal trust in the legal system and coherence of law? What is the (possible) influence on that trust by the digitalization of legal decisions and the availability of (big) data on the Judiciary, through which differences in decisions can more easily be discovered? What are the main problems when it comes to the relationship between coherence of law and societal trust? Is it still the familiar areas of sentencing and – maintenance and severance – payments or are there other problems which were not previously exposed? What has been the effectiveness of the initiatives of judges to improve the coherence of law. Have those initiatives had the desired effect? Which other initiatives could be conceived?

Furthermore, I think of research into the importance of predictability of judicial decisions for economic behavior. Such research would then also need to focus on other factors affecting the performance of the legal system, such as the duration of court procedures and what significance that has for economic growth. Understanding such mechanisms can clearly reveal the importance of research in the field of the administration of justice and can show that this research, which appears a theoretical subject to non-lawyers, actually does have social significance. The latter should be a central issue in these blogs, in my opinion. But now it is someone else’s turn.