By Mike Dorf
In another Cornell Law School celebration of a recent faculty book, last week we examined Mitch Lasser's new book, Judicial Transformations: The Rights Revolution in the Courts of Europe. I was one of four panelists, along with French Justice Guy Canivet, Yale Law professor Alec Stone Sweet, and Syracuse Law professor Juscelino Colares. Here I want to say a few words about the book and about the larger question of legal pluralism that it raises.
Lasser begins by explaining the traditional understanding of constitutionalism in France, which is, to paint with a broad brush, Rousseauian rather than liberal. Believing in the existence of a general will best expressed through the legislature, relative to American constitutionalism, the French were oriented towards legislative supremacy. They had a form of constitutional review in the Conseil Constitutionnel but only prospectively and in the abstract. The Conseil did not, until very recently, entertain concrete cases of rights. Meanwhile, two other judicial/quasi-judicial bodies--the Cour de Cassation and the Conseil d'Etat--were responsible for concrete cases but the latter especially followed procedures that emphasized the primacy of the state rather than litigants.
That system has been under considerable pressure, as Lasser notes, from the European Court of Human Rights (ECHR), and over the last several decades, French courts--especially the Cour de Cassation under the leadership of Justice Canivet (now on the Conseil Constitutionnel)--have haltingly but clearly responded to the pressure by moving France firmly in the liberal direction. Thus today French jurists talk the language of fundamental rights in much the same way as the ECHR and constitutional courts the world over. Lasser's book does an elegant job of showing what a dramatic transformation that represents.
Lasser also pays some attention to another, seemingly quite odd, feature of the rights revolution in France and Europe: The lack of a clear hierarchy. Here I want to spin it out a bit more. To oversimplify:
1) At the European level, the ECHR competes for supremacy with the European Court of Justice (ECJ), the highest judicial organ of the EU. With substantially but not entirely overlapping geographic jurisdictions and no ability of parties to appeal the decisions of the ECJ to the ECHR or vice-versa, it is not clear who has the final say with respect to rights in Europe.
2) There is a similar institutional competition within France among the Cour de Cassation, the Conseil d'Etat, and the Conseil Constitutionnel.
3) The lines of authority between European courts and national constitutional courts are likewise unclear. The European bodies have clearly said that European norms trump national ones, and that national courts must accept EU and ECHR interpretations (as well as give them direct effect), but meanwhile, national constitutional courts have sometimes said that European norms, as creatures of treaty obligations, are subordinate to national constitutional norms.
Thus, in a country like France, there are arguably five different "final" authorities with respect to various fundamental rights, each with a legitimate claim to supremacy over the others in particular contexts. During his comments, Stone Sweet said of France in particular that this situation means that there is no legal order in France.
I disagreed and continue to disagree. It's true that there is no strictly hierarchical legal order, but there is a polyvocal legal order in France and Europe. Perhaps we are in a transitional period--much in the way that it took the U.S. Supreme Court some years to establish its authority over state courts with respect to federal law, a feat accomplished in 1816 in Martin v. Hunter's Lessee. If so, then eventually one of the European courts will ultimately prevail or national courts will treat the decisions of European courts as effective only subject to their own approval, with a showdown leading to one "Supremest" Court in France.
But that is not the only logical possibility. Instead, we could have competing interpretive power centers indefinitely. Yes, this would lead to some confusion about the state of the law when the various "supreme" courts disagree, but informal mechanisms would arise to deal with such disagreements. In the U.S., for example, circuit splits often persist for years and some legal questions never seem to be answered by any court. Meanwhile, polyvocalism could lead to a "race to the top" in the definition of fundamental rights, or at least to inter-court dialogue. Ultimately, if one takes the view--as I do--that courts typically define rights (and other legal constructs) largely in response to social forces, then the convergence of social pressures on multiple courts should keep their respective jurisprudences within shouting distance of one another. Legal pluralism, in this view, could last indefinitely.