Elaine Mak

The European Judicial Organisation in a New Paradigm: The Influence of Principles of New Public Management on the Organisation of the European Courts

Recent reforms regarding the European Courts raise the question in which way do new public management principles influence the European judicial organisation and how is a balance struck between these principles and classic rule of law principles? The article first presents a classification of these types of principles in the framework for discussion regarding the European judicial organisation. Starting out from two paradigms, an inquiry is made into the status of the two sets of principles in the present-day European constitutional framework. Second, the interaction of principles is investigated with regard to a number of current dilemmas, including the demarcation of the judicial domain, the management of the Courts and the distribution of judicial competences.

WHY DO DUTCH AND UK JUDGES CITE FOREIGN LAW

In England and in the Netherlands, the national highest courts seem to be developing new practices under the effects of judicial globalisation or internationalisation. This is particularly apparent in the increased interaction of judges of the national highest courts with judges from other legal systems, an interaction which does not only concern the study of international and foreign legal materials, but also the exchange of legal ideas between judges in transnational networks. Judicial globalisation thus has induced the development of an outwardlooking approach of national courts which appeared to be in decline since the rise of the nation state. [...]

Judicial Review of Regulatory Instruments: The Least Imperfect Alternative?

Abstract In this article, the judicial review of regulatory processes is investigated from the perspective of institutional choice, which concerns the optimal institutional allocation of functions in a society. It is demonstrated that judicial decision-making and policy making, both forms of public decision-making, in liberal democracies are changing under the effects of: (i) shifts in the balance of power between the branches of government, and (ii) the emancipation of the social sciences as standards for public decision-making. The institutional role of the judiciary with regard to the guarantee of the quality of regulatory processes is examined in light of political, legal, economic and professional rationalities concerning public decision-making. On the basis of this analysis, it is concluded that the judiciary in liberal democracies currently seems to be a legitimate institution to exercise a review of regulatory processes. Moreover, the analysis clarifies that the courts in liberal-democratic systems generally are able to provide the knowledge and the organisational structure needed to exercise this kind of judicial review.

General Principles of Law and Transnational Judicial Communication

In the globalised legal context, the national courts in Western legal systems increasingly interact with each other as well as with courts at the regional and international levels. Judges exchange views and experiences in networks and through visits and conferences and they consult international, European and foreign legal materials when deciding domestic cases. Which role do general principles of law play in this developing transnational judicial communication? This chapter investigates this question on the basis of a comparative and socio-legal analysis of five legal systems (Canada, United States, United Kingdom, France, Netherlands), drawing information from constitutional theory and from interviews with judges in the highest courts of the selected systems. The analysis reveals that the use of foreign legal sources by the examined courts has become a common practice in the daily business of judging cases. The examples given by the interviewed judges provide illustrations of the specific practices of each court, highlighting a relatively high number of cases in which general principles of law played a role. The legal-theoretical analysis clarifies that the added value of the developed practices of the courts is nuanced by the legal factors of authority of legal sources, legal tradition and the particularities of national legal systems. Moreover, contextual factors related to individual judicial approaches and concerns of effective and efficient judicial decision-making influence the reference that is made to comparative law, including foreign general principles of law.

Watch Out for the Under Toad: Role and Method of Interdisciplinary Contextualisation in Comparative Legal Research

This article studies the significance of insights from nonlegal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualization’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualization of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualization 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 contextualization in comparative legal analysis conducted by legal scholars and legal practitioners.