(1) This article was originally presented as a speech at a meeting of the International Association of Constitutional Law — French Senate, June, 2001. The article appears in the German Law Journal (http://www.germanlawjournal.com) with the author's permission but all rights thereto reside with the author.Google Scholar

(2) The word “jurisprudence” is somewhat misleading, especially in the context of American legal terminology where it refers to what we in Europe call “legal philosophy”. In French, the term refers to the consistent practice of the courts, especially of the higher courts. I chose the term here because etymologically it refers to legal wisdom (prudentia juris). As such, the term is somewhat neutral and ambiguous. This suits me well because it averts the question whether the case-law produced by courts is a sub rosa legislative activity. Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814 (rev. 1828), André-Vincent in France and Rantoul in the United States are some of the foremost authors on this subject. See below, note 8.Google Scholar

(3) Here we do find an important difference between the constitutional courts and the European Court of Human Rights. The ECHR's judicial review applies only to the decisions of the national courts of last instance. This is due to international law's doctrine of subsidiarity. See, for example, A.A. Cancado Trindade, The Application of the Rule of Exhaustion of Domestic Remedies in International Law, Cambridge University Press, 1983. This question represents an important aspect of the ECHR's recent Cyprus v. Turkey inter-State judgment (application no. 25781/94, judgment of 10 May 2001) where the Court required domestic remedies before the “TRNC” courts to be exhausted before it could consider the case. See §§ 82 to 102, citing the International Court of Justice?s Advisory Opinion on Namibia (1971 ICJ reports, p. 56, § 125). Even so, the ultimate decisions of the national courts time and again entail legal problems deriving from the legislative and executive branches. See, for example, Chassagnou v. France, judgment of 24 April 1999, Nikolova v. Bulgaria, judgment of 25 March 1999, etc.Google Scholar

(4) Kegan, See Robert, The Evolving Self, Harvard University Press, 1979. I also deal with the central issue of the level of moral development attained by judges in “From Combat to Contract or ‘What does the Constitution Constitute?‘”, 11 European Review of Public Law 11–58 (1999).Google Scholar

(5) I say “dangerous” because it can be activated by people like Hitler, Mussolini or Milosevic. Human-rights philosophy is one of the first lines of defence against such populist approaches. The history of the European Convention on Human Rights is a clear testimony to that. For example, although this is purely hypothetical, I am convinced that the Serbian tragedy could have been averted in its early stages had the Yugoslav Constitutional Court at that time had the courage and the power (in that order!) to do so. Likewise, various other current populist, xenophobic, racist, revisionist, etc. pronouncements are a constitutional (and not merely a political) issue in so far as political programmes and activities, too, are and should be constrained by the constitution as a basic social contract. Freedom of speech, for example, is generally restricted by the “clear and present danger” constitutional test. But a political party's undemocratic programme and xenophobic activities are a fortiori constrained by the democratic principles which European constitutions typically stand for.Google Scholar

(6) For those of us who benefited from a good education in Roman law it may be obvious that, on the whole, the legal process has not really changed in the last two thousand years. We still employ pretty much the same mental approach as Paulus, Ulpianus and other great Roman jurists. (Medicine, for example, has been transformed by science and technology. We cannot say this of law.) Napoleon's codification itself was inspired by and modelled upon Justinian's Corpus Juris. If ground has been gained, it is certainly not in classical fields such as private and criminal law. The real structural changes in law are now arising from the transformed role of constitutional and international judicial bodies.Google Scholar

(7) The Enlightenment's notion of the rule of law derived, at least partly, from the over-reaction against the arbitrariness of the French aristocratic justice of the ancien régime. See, for example, Cappelletti and Cohen, Comparative Constitutional Law, 1979, Ch. I.Google Scholar

(8) See Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814 (rev. 1828). Von Savigny was, for the very same reasons, opposed to the grand designs of Napoleonic codification. He firmly believed (to borrow his metaphor) that the umbilical cord between the life of the nation and its law must not be cut, i.e. that law, as we would say today, is an inductive empirical process of settling any new controversies that arise. Time proved him to be right. The Enlightenment's deductive and reductive rationalistic method tacitly collapsed with, for example, Professor Steinberger's discovery that the decisions of the German Constitutional Court are not only effective erga omnes but are an authentic Rechtsquelle, source de droit, source of law.Google Scholar

(9) From the practical and technical standpoint, I think every judge of every constitutional court can testify to the difficulties arising from this fundamentally artificial distinction. Moreover, in countries in which the rule of law is not established, this “logic” tends to be perversely abused both in politics and in the “free” press orchestrated by the new (ex-Communist) anciens régimes in order to rein in the nascent independence of the judiciary and especially of the constitutional courts. I should say “absurdly abused” because — when the constitutional courts are being disparaged on the grounds that they have overstepped the margin of the narrow “concretising” jurisdiction and that they have transgressed into the “abstract” territory of legislative jurisdiction — the rule of law is being nipped in the bud in the name of the “rule of law”. See Brumarescu v. Romania, judgment of 28 October 1999; Streletz, Kessler and Krenz v. Germany, judgment of 22 March 2001, etc.Google Scholar

(10) Of course, this raises a further elemental issue. Montesquieu's idea of the separation of powers derived from a premise that it was possible to construct the division of labour between the legislative and the judicial branch by means of the Cartesian separation of what is abstract and what is concrete. In so far as the separation of abstract and concrete jurisdiction is workable, it has been given ample opportunity to test itself in politics and in the legal tradition. But it has proved to be quite impracticable, to say the least. It required the construction of the falsehood of complete separation of powers, which has become difficult to sustain. Of course, in so far as it is a question of power and prestige, the political protagonists of the executive (the most dangerous) and the legislative (the less dangerous) branch of power do cling to it. They maintain that they have a popular democratic mandate and that the judicial branch (the least dangerous), appointed by them, lacks this electoral accountability. Hence the somewhat disingenuous suggestions concerning “judicial restraint”, the purely “negative jurisdiction” of constitutional courts, etc. A meaningful discussion of the above predicament would require a re-evaluation of some of the basic philosophical premises. Suffice it to say here, that the constitutional doctrine of checks and balances does provide a dynamic (as opposed to static) answer to many of these concerns. In terms of Henri Bergson's philosophy, this reiterates the basic distinction between two divergent modes of thinking: on the one hand, the static (sub specie aeternitatis), and on the other hand, the dynamic (sub specie durationis). The distinction has been revived by another French philosopher, the late Gilles Deleuze.Google Scholar

(11) See an excellent essay on this by a former judge of the ECHR, Professor Benedetto Conforti, entitled “Community Law and European Convention on Human Rights: A Quest for Coordination”. The article will appear in the volume of essays in honour of A. Cassese. A more or less similar article has already appeared, in Italian, in the Rivista Internazionale dei Diritti dell'Uomo, 2000.Google Scholar

(12) In comparative legal terms, this process is similar to the XIVth Amendment due-process issues. In those cases the US Supreme Court determined which constitutional rights were “fundamental” to the extent that it was necessary to overrule and reverse states' legal rules and practices accordingly. This covered everything from criminal procedure, which in the US is largely a concern of constitutional law, to substantive and procedural due process, equal protection by the law (prohibition of discrimination), freedoms of thought, speech, the press and assembly, etc. Given the directly binding and erga omnes effect of the United States Supreme Court's constitutional-review judgments upon the states, this meant that the latter were required to change their specific legislation in order to conform to the US Supreme Court's interpretation of the Federal Constitution.Google Scholar

(13) See Luca v. Italy, judgment of 27 February 2001 and Scozzari and Giunta v. Italy, judgment of 13 July 2000. These cases have to do with the binding nature of ECHR judgments.Google Scholar

(14) The term “fundamental” is used with reference to the XIVth Amendment jurisprudence of the U.S. Supreme Court. But similar criteria are, mutatis mutandis, applied by the ECHR. The Convention itself is an establishment of fundamental and minimal human rights standards in Europe.Google Scholar