Watch Out for the Under Toad

This article studies the significance of insights from non- legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioner

The Judicial Domain in View: figures, trends and perspectives

Where will the Dutch judicial system be in 2015? One of us answered a similar type of question elsewhere with a sketch of two frightening scenarios.* In the first scenario the judicial system will have insufficiently adapted itself to its surroundings. The judicial system will become more intensively involved in a decreasing amount of cases that gradually carry less weight. The judicial system, as a social phenomenon, will be marginalized even though the traditional standards of constitutional legitimacy and professionalism of the administration of justice are kept up. Interesting or big cases will be handled outside the judiciary by special courts or through arbitration, mediation or other forms of “alternative dispute resolution” (ADR). The large amount of bulk cases will be transferred to other legal areas or authorities where the involvement of the judge will decrease (for example the Mulderizing of criminal cases, or settlement by the Public Prosecutor). With the decrease in jurisdiction the authority of the judicial system will decline and eventually prise itself out of the market. In the second frightening scenario the judicial system will have adapted itself too much to its surroundings. Van Gunsteren once sketched a picture of the court as a dynamic centre for settling conflicts, a place where the experts fall over each other with seminars, workshops, courses, and new methods. Instead of settling conflicts they get copied within the judicial organization itself.† The judicial system, with its well-meaning efforts at being responsive, will have distanced itself from its core duties: settling disputes through binding judgments. While the judicial system has lost touch with its surroundings in the first scenario, it has lost its own self in the second scenario

The European Union’s Rule of Law Agenda: Identifying Its Core and Contextualizing Its Application

Monitoring the rule of law performance of EU member states presupposes that the EU has a clear idea of what is meant by the rule of law. Theoretically, however, the conceptualization of this notion has proven difficult, leading to a wide range of differing approaches. Moreover, the application of a common rule of law concept in a multilevel legal context creates its own difficulties. As the starting point for this contribution, we identify a core meaning of the rule of law based on the work of Philip Selznick and Martin Krygier. They see the reduction of the arbitrary use of power as the central value and point to the importance of a contextual approach to realizing that value: reducing arbitrariness may require very different concrete measures from one society to another. We examine what common idea of the rule of law is projected by the European Union in its rule of law agenda, looking specifically at two important instruments, the Justice Scoreboard and the Better Regulation programme. Using the contextual approach to rule of law, we then examine whether the core meaning of this concept is recognizable here, and whether efforts are already made to allow for the inclusion of contextual elements. Our analysis clarifies that the two instruments support the core notion of the rule of law by enhancing the quality of political debates in the EU. However, underlying economic assumptions and approaches as well as political forces form a constant threat to the realization of elements of participation and

Introduction: The Possibilities of Comparative Law Methods for Research on the Rule of Law in a Global Context

Since its rise at the beginning of the twentieth century, comparative legal research has gained an influential place in legal research concerning national legal systems. Comparative legal methodology is used to acquire insight into foreign legal systems, to find solutions for problems of a specific legal system, or to promote the unifi cation of law between national legal systems. Its methods consist of a comparison of different legal systems or legal traditions (external comparison), or of fields of law within national legal systems (internal comparison). With the proliferation of regulatory regimes at the international level (e.g. in the context of the United Nations or the WTO), comparative legal research has expanded its focus to include international law. Consensus, however, has not been reached on the most suitable way of applying comparative law methods to the global context. Can the concepts and methods developed to conduct comparative legal research of national legal systems be transposed to study the international legal system? In this issue of Erasmus Law Review, a number of scholars with different legal backgrounds reflect on these questions

De rechtspraak in balans: een onderzoek naar de rol van klassiek-rechtsstatelijke beginselen en 'new public management'-beginselen in het kader van de rechterlijke organisatie in Nederland, Frankrijk en Duitsland

De discussie over de rechterlijke organisatie in Nederland kenmerkt zich de laatste jaren door een grote aandacht voor aspecten als transparantie, effectiviteit en efficientie. Tegelijkertijd dient met het oog op de legitimiteit van de rechtspraak aandacht te blijven voor het behoud van verworven rechtsstatelijke waarborgen van rechterlijke onafhankelijkheid en onpartijdigheid. De recente moderniseringsdebatten in Nederland, en ook in andere moderne rechtsstaten, komen hiermee in het teken te staan van het vinden van een nieuw evenwicht van uitgangspunten voor de rechterlijke organisatie. In dit boek wordt de discussie over de modernisering van de rechterlijke organisatie in Nederland, Frankrijk en Duitsland geanalyseerd vanuit een constitutioneel perspectief. Beoogd wordt aan te geven welke plaats nieuwe kwaliteitseisen - dat wil zeggen 'new public management'-beginselen - in het constitutionele kader innemen ten opzichte van klassiek-rechtsstatelijke beginselen. Een rechtsvergelijkende analyse biedt aanknopingspunten om het constitutionele afwegingskader van beginselen in kaart te brengen en de implicaties voor de invoering van nieuwe oplossingen voor de rechterlijke organisatie te schetsen

The Framework for Judicial Cooperation in the European Union: Unpacking the Ethical, Legal and Institutional Dimensions of ‘Judicial Culture’

Possibilities and constraints for achieving legal unity in the context of the European Union (EU) manifest themselves in multiple and illustrative ways in the development of cooperation between judges in EU Member States. For example, recent discussions on judicial independence in Hungary and Poland underline that we are still quite far removed from the realisation of a shared European normative basis for judicial functioning, that is: a shared ‘judicial culture’. These discussions simultaneously emphasise the importance of such a basis for the realisation of the ideal of the ‘rule of law’. As a stepping stone for future interdisciplinary legal research, this article provides a theoretical analysis of the concept of ‘judicial culture’ and three of its core dimensions (ethical, legal, institutional), which has not been available in legal scholarship so far. Our analysis demonstrates that by carefully establishing in which types of sources we can locate the respective dimensions, and by designing a methodology for analysing these sources, scholars can analyse judicial cultures in a more in-depth and systematic manner. In this way, specific conceptual ‘lenses’ become available for the collection of relevant information and empirical data, for the theoretical analysis and comparison of these results and eventually for a normative assessment of the possibility and desirability of convergence of judicial cultures. From this perspective, this analysis aims to contribute to further insight into questions on legal unity and its realisation in a context of diverging social pressures

Experimental insight into the fair process effect and its boundary conditions: External attributions may moderate reactions to procedural justice in legal contexts

The perception of being treated fairly during decision-making processes is an important topic in the research literature on law and society. Many studies have indeed found that perceived procedural justice affects people’s reactions, for instance, by increasing their trust in legal authorities and lowering their intentions to protest against these authorities’ decisions. Here, we reveal support for this fair process effect and point to some of its potential boundary conditions. In our experimental study, 239 participants imagined being the defendant during a single-judge criminal court hearing that used either a fair or an unfair procedure. Following the experience of a fair as opposed to an unfair procedure, participants showed more trust in judges and were less inclined to protest against the judicial ruling. Interestingly, the effect of the procedure manipulation on trust in judges was moderated by the extent to which participants attributed their case outcomes to external causes. We found a fair process effect among participants with relatively low external attribution ratings, while this effect attenuated and was not statistically significant among participants whose external attribution ratings were relatively high. These findings point to the possibility that attributional processes can moderate people’s responses to procedural justice in legally relevant contexts

Flexible implementation and the energy efficiency directive

This paper analyses patterns of differentiated implementation in four member states (Czechia, Germany, Ireland and the Netherlands) under the 2012 Energy Efficiency Directive (EED). Differentiated implementation occurs when member states makes use of the discretion given to them in EU legislation. This paper seeks to analyse whether differentiated implementation occurred under the EED and what this means for the effectiveness and legitimacy of the Directive. The EE offers broad discretion to member states in choosing and specifying targets and measures related to energy efficiency. The four member states have made extensive use of this discretion. The dominant pattern in this regard is that member states have used the discretion to retain domestic measures that were already in place. This pattern is driven by a combination of inertia and the wish not to disrupt well-working approaches. Overall, the pattern of differentiated implementation that resulted has arguably had a positive effect on goal-achievement under as well as domestic acceptance of the EED. At the same time, the Directive’s impact on domestic policies and approaches has been limited