The Unity of Law 2: A step towards a definition and instruments that can optimize the unity of lawRolf Ortlep
In his ‘The Unity of Law 1: Blogging about the unity of law?’, Eddy Bauw gave an inspiring kick-off on the subject of the unity of law. It is the intention to – with this blog as a starting point – start a series about that topic. With this blog and the next blog, this challenge is taken up.
In his blog, Eddy Bauw examined the importance of the unity of law from, amongst others, a legal, social and economic perspective. Mentioned and endorsed is that the unity of law improves the quality of the litigation process: it makes litigating easier for litigants and facilitates the processing and disposal by the court. It also increases efficiency and effectiveness, which in turn can lead to saving on costs. The foregoing is confirmed by the study: In de schaduw van de rechter. Individuele en maatschappelijke kosten en baten van de juridische infrastructuur (In the shadow of the judge. Individual and societal costs and benefits of the legal infrastructure). In this study it is noted that the unity of case law can reduce the recourse to the courts. This conclusion with the idea that the unity of case law is a condition by which litigants can make a good assessment of possible solutions for a conflict. Then litigants can bring conflicts to an end through a cheaper alternative mode of dispute resolution, rather than going to court. The ‘old masters’ already suggested this. For example, Ph.A.N. Houwing observed: ‘Good law avoids procedures, does not stimulate them. A procedure is a societal evil. A procedure creates turmoil within and between parties, creates or increases their enmity. A procedure takes unproductive effort. It takes time and all the while the legal uncertainty persists. A procedure costs unproductive money, whoever is fighting for a cow, also gives one.’
Referring to the blog of Eddy Bauw, I take the importance of the unity of law as a starting point in this blog, because I do not want to merely repeat his blog, and because I want to give a modest impetus to define the term ‘unity of the law’ and to discuss a few instruments which can optimise that unity of the law to be used as research focus points. Certainly not as a final piece, but as an invitation to – whether or not in a follow-up blog – enter into a discussion.
A step towards a definition
The unity of law can be defined in different ways. To form an opinion on this the unity of law is respectively defined here as follows (E.M.H. Hirsch Ballin, Rechtsontwikkeling door de bestuursrechter. VAR-reeks 154, Den Haag: BJu 2015, p. 59-160). The notion of ‘the unity of law’ is linked to the notion of ‘the development of law’ (‘the formation of laws’). The latter is when the court, in its judgment, determines the current law and its significance extends beyond the dispute. A dimension of the development of law is advancing the unity of law. Therefore, the former is the more general goal: a court judgment – for example of a court in first instance – which constitutes a derogation of the law as it stands at that moment (so-called ‘judicial disobedience’) can even advance the development of law. In the event that the court develops the law it can, in turn, contribute to the unity of law, in the sense that the clarity, accessibility and foreseeability (predictability) of the law are increased.
The lack of unity of law touches upon injustice. When someone exclaims about the law, outraged: ‘that is unjust’, it is often because he or she feels that two ‘identical’ cases are not treated equally with regard to the law. In that sense, the unity of law has a stronger connection with the equality postulate of the law. A prerequisite for the victory over the feeling of injustice or inequality and thus consensus on the legitimacy of the outcome is that it has to be supported by proper and explicit arguments. With that in mind, the description of the notion ‘the unity of law’ is more about a characterization on the basis of what is required for the unity of law. In view of this, it can be observed that there is no unity of law if a difference in case law is not supported by proper and explicit arguments. In this characterization the view that the unity of (case)law can never be fully achieved, and that it is not an end in itself, fits in. After all, to agree with H.C.F. Schoordijk: ‘In a pragmatic explanation, which is always influenced by the answer to the question: ‘what kind of society do we want?’, legal rules receive different answers’ (Realistische en pragmatische rechtsvinding: taak en taakopvatting van de rechter in de westerse wereld, Oisterwijk: WLP 2014, p. 56-57). The importance of legitimate diversity is equal to the importance of the unity of law, or negatively formulated, in the words of M.A. Loth: ‘Unfounded unity of law contributes just as much to inequality as unjustified diversity.’
Instruments to optimise the unity of law
Beforehand a few instruments can be named that in any case (also) have as a goal to optimise the unity of law. For now, the next four instruments are distinguished: institutional reform, preliminary ruling procedure, coordination and a differentiated discursive substantiation requirement. These instruments I will discuss as possible research focus points below and in a following blog.
In order to optimise the unity of law, the institutional structure of the judiciary is an important issue. In this respect there is also a prominent place for the legislature and, more generally, the question can be asked how the Trias Politica functions in the interaction between judge and legislator in the establishment of the unity of law? As an example the current debate about the institutional structure of the administrative courts can be mentioned. To promote, inter alia, the unity of law there is a government proposal to discontinue the Central Appeals Tribunal (for the public service and social security matters) and the Administrative High Court for Trade and Industry: the jurisdiction of the former court will go to the court of appeals and the jurisdiction of the latter court will go to the Administrative Division of the Council of State (Kamerstukken II 2015/16, 34389, no. 1-4). If this government proposal passes, then the institutional structure of the administrative courts will consist of two supreme administrative courts: the Supreme Court and the Administrative Division of the Council of State. This government proposal has raised the question whether or not there should be an institutional unity of law provision and in the meantime the government has set up a committee for that purpose (Stcr. 2015, 47139).
Besides a preliminary ruling procedure (compare my next blog), a common division of the highest judges can be thought of as an institutional provision for the unity of law. Such a division, whether or not by creating a new court, also has constitutional questions, especially since the Administrative Division of the Council of State does belong to the administration of law, but not the judiciary. With regards to a common court of the highest judges reference is often made to the gemeinsame Senat der obersten Gerichtshofe des Bundes in Germany. The gemeinsame Senat consists of the presidents of the highest Bondsgerechten, but with the exclusion of the Constitutional Court, the Bundesverfassungsgericht. When one of the highest Bondsgerechten wants to depart from a judgment of another highest Bondsgerecht respectively from the gemeinsame Senat itself, a judgment of the gemeinsame Senat must be requested through a preliminary ruling procedure. In practice, this procedure is rarely used. An important reason being that in Germany the unity of the law is mostly guaranteed by the Constitutional Court, the Bundesverfassungsgericht, which is lacking in the Netherlands. It would be interesting to research in how far a constitutional court in the Netherlands could contribute to optimising the unity of the law. But also with regards to the case law of the European Court of Justice and the European Court of Human Rights an institutional reform may be considered. In that regard the discussion is highly relevant about the value of the accession of the European Union to the ECHR and to what extent this could contribute to the optimisation of the unity of law between the two European Courts. This question can also be posed with regards to the entry into force of Protocol no. 16 which provides for a consultation of the ECHR by the highest national court pending proceedings at the national level.
To be continued
My next blog, as I have mentioned previously, examines the other three instruments to optimise the unity of law and I come to a conclusion. To be continued…