Workshop no 15: The Transformation of the Principle
of the Separation of Powers
(Prof. Roca and Prof. Mathieu)
The jugislator, or when the third power becomes the
first one?
Dr. iur. Luc Gonin, Lecturer at the Universities
of Fribourg, Geneva and Neuchâtel (Switzerland)
[email protected]
1.
Introduction
This contribution follows four main goals. It will firstly try to demonstrate
the emergence of a new main actor in today’s legal reality: the jugislator.
It will secondly try to prove that the judicative power, nowadays, cannot
be considered, any more, as the third power due to this new figure and
that, actually, the jugislator is putting an end to the civil law variant of
separation of power. Thirdly, this paper desires to demonstrate that this
new juridical actor acts, from time to time, as a “derived constituent power”. Finally, it has the ambition to underscore the dangers of the current
legal situation in the European region, proposing one or two ways to improve it.
Concerning the structure, a few main features of the Modern State and of
the concept of separation of powers will be presented (1). Then, the jugislator will be defined and evidences of its existence on the European continent will be shown (2). A third section will present the specificities of the
international jugislator (3). The following paragraphs will analyze the situation of checks and balances in the European region (4). Afterwards, this
paper will assert the end of the civil law variant of separation of powers in
the Old World (5). Finally, it will examine the problems raised by the current legal situation and present a possible solution (6).
As for the limitations of this paper, it only concerns the legal situation in
Europe 1, even though many assertions are also correct, mutatis mutandis,
for other legal traditions. In addition, it only analyzes the specific domain
of Human Rights.
2.
Separation of powers, judicative and legislative in the Modern State
2.1
The concept of separation of powers
In the field of constitutional law, the notion of “separation of powers” is of
highest importance 2. Since many decades, it beneficits from great respect
and many state that it constitutes a “fundamental element of State organization” which “had a deep impact on constitutionalism” 3. Having its origins going back to Antiquity, this concept is analyzed with greatest attention during the Period of Enlightenment 4. LOCKE, for example, differentiates between three types of power: a legislative one, an executive one and
a “federative” one 5. Some of LOCKE’s assertions in regards to separation
of powers also express eternal truths, such as the following one:
“And because it may be too great a temptation to human frailty, apt to grasp at power, for
the same persons, who have the power of making laws, to have also in their hands the power to execute them…” 6.
Thus, an obvious opposition exists between the political philosophy defended by LOCKE and the ideas endorsed, e.g., by MACHIAVEL, BODIN or
HOBBES. A few decades after LOCKE, MONTESQUIEU will also support
separation of powers with enthusiasm. He will amongst others write a
phrase that will, on the long term, change political institutions forever:
“(…) It is necessary from the very nature of things that power should be a check to power” 7.
1
However, the European Union regulations are not specifically examined, the Council of Europe
currently being the main actor in the field of Human Rights in this region.
2
Due to my respect for the “Founding Fathers” of the notion of “separation of powers” and for
lisibility reasons, I will use in this article this expression and not the one of “distinction of powers”.
3
See e.g. AUER A. / MALINVERNI G. / HOTTELIER M., Droit constitutionnel suisse – L’Etat (Vol.
I), 3d Edition, Berne 2013, p. 595f.
4
See e.g. AUBERT J.-F., Traité de droit constitutionnel suisse (vol. II), Neuchâtel 1967, p. 450.
5
See LOCKE J., Second Treatise of Government, London 1690, chap. XII.
6
LOCKE J. (note 5), chap. XII.
7
MONTESQUIEU CH., The Spirit of Laws, Geneva 1748, Book XI, chap. IV.
2
MONTESQUIEU also states that three powers must be distinguished, precising in addition that:
“There would be an end of everything, were the same man or same body, whether of the
nobles or of the people, to exercise to three powers, that of enacting law, that of executing
the public resolutions, and of trying the causes of individuals” 8.
ROUSSEAU equally plays an important role in relation with the ideal of
separation of powers. Indeed, he permits the development of the functional
separation of powers 9, thanks in particular to his precise definition of the
legislative and executive functions 10. Thus, the French speaking philosopher can be regarded as the precursor, if not the founder, of functional
separation of powers 11. Although these functional distinctions are not
completely flawless 12, they have forever shaped the understanding of law
in the West, even if their practical application differs through time and
across regions.
In this section, it should also be specified that, for purposes of categorization and clarity, I assert that there is a civil law conception of separation of
powers, while I am fully aware of its ideal-typical nature. This Weberian
figure, found at least intermittently throughout the European continental
region, has three characteristic features: it seeks firstly to neutralize
tendencies of concentration of powers in States, it nourishes secondly a
historical distrust of the judicative 13 and gives, thirdly, a central role to
statutes, broadly speaking, in the legal order 14. Therefore, it relies undoubtedly on key ideas defended respectively by LOCKE, MONTESQUIEU
and ROUSSEAU and differs greatly from an Anglo-Saxon conception of
separation of powers, which offers a major role to the judge within the
legal system and shows no particular deference towards statutes, at least
historically speaking.
The actual relevance of the civil law variant of separation of powers will
also be examined in details later 15. Specifically, it will be necessary to determine whether this particular conception of separation of powers can still
8
MONTESQUIEU Ch. (note 7), Book XI, chap. VI.
See SEILER H., Gewaltenteilung – Allgemeine Grundlagen und Schweizerische Ausgestaltung,
Bern 1994, p. 23.
10
For a brief introduction on ROUSSEAU and the separation of powers, see e.g. GONIN L.,
L’obsolescence de l’Etat moderne – Analyse contextuelle et diachronique à l’exemple de l’Etat
français, Geneva/Basel/Zurich 2011, p. 49ff.
11
See esp. ROUSSEAU J.-J., Du Contrat social, Paris 1992, p. 85. See also SEILER (note 9), p.
23.
12
See e.g. AUBERT (note 4), p. 451ff.
13
See below sec. 2.2.
14
See below sec. 2.3.
15
See below sec. 6.
9
3
be considered, today, as a central pillar of the continental legal order or
whether, on the contrary, it has become obsolete. For the time being, it is
worth recalling briefly the role played, traditionnally, by the judicative and
legislative powers in the European region.
2.2
The judicative power
Conventionally, the judge “has no margin of autonomy” and “the jurisprudence blends in with the judicial function” on the European continent 16.
Accordingly, justice should be “invisible” and judges only “the mouth that
pronounces the words of the statute, inanimate beings who can not moderate the strength or rigor” of the said law 17. One notices, therefore, a particularly restrictive approach to the judicial function, since the judge must
simply apply a legal provision to a particular case, without having the
right to complete it, even if she or he deems it necessary, advisable, or
even essential 18. This rather mechanical conception of the judicial function
is due, at least in the French tradition, to a qualified distrust against judges
of the Old Regime; as a reminder, these judges had gained a fairly substantial legislative power through their activity over several decades 19.
This skepticism about the judiciary has a real impact on Modern States’
legal order, since laws are “confined in Codes”, leading to a “beaming
légiscentrisme shining in all its glory [and] reducing to nothing other law
creation places” 20. This statement is certainly true for France, but also for
other States 21.
For the classic theory of separation of powers, the judiciary, moreover, is a
“passive power” that acts only when it is consulted. Even today, this fairly
modest understanding of the judicial function appears in different scien16
See esp. SEVERIN E., Jurisprudence, in: CADIET (ed.), Dictionnaire de la justice, Paris 2004, pp.
711-716, p. 713 (our translation).
17
See SEVERIN (note 16), p. 712f. and BEHRENDT C. / BOUHON F., Théorie générale de l’Etat, 2nd
Edition, Brusells 2011, p. 157. See also CANIVET G., Activisme judiciaire et prudence interprétative
– Introduction générale, in: Archives de philosophie du droit (Vol. 45), 2001, pp. 7-32, p. 9f.
18
See e.g. BEHRENDT/BOUHON (note 17), p. 157. MATHIEU, on his part, asserts quite eloquently
that : « The judge can not decide instead of the legislative power » (MATHIEU B., Les rôles du juge
et du législateur dans la determination de l’intérêt général, in: Archives de philosophie du droit
[Vol. 45], 2001, pp. 41-48, p. 44) (our translation).
19
See JEULAND E., Syllogisme judiciaire, in : CADIET (dir.), Dictionnaire de la justice, Paris 2004,
pp. 1269-1272, p. 1270 and TERRE F., L’américanisme et le droit français, in: Philosophie politique
(no. 7), 1995, pp. 137-147, p. 139.
20
CADIET L., L’hypothèse de l’américanisation de la justice française. Mythe et réalité, in: Archives de philosophie du droit (Vol. 45), 2001, pp. 89-115, p. 100f. See also FOYER J., Allocution
d’ouverture, in: Archives de philosophie du droit (Vol. 45), 2001, pp. 3-6, p. 4.
21
See e.g. BEHRENDT/BOUHON (note 17), p. 157.
4
tific contributions 22. Thus, it is no exaggeration to say that, traditionnally,
the judge is considered a “servant of the law, in the noble sense of the
term” on the European continent.
2.3
The legislative power
At least since BODIN 23, the importance of statutes has been recognized by
various political thinkers, such as ROUSSEAU, who theorized several of its
specificities, including its general and abstract nature 24. In addition, he
asserted that the government can - and should – only be the “minister” of
the sovereign power, which means etymologically speaking its “helper” 25.
Therefore, ROUSSEAU considered the legislative power as a sovereign
power, leading various authors to argue that in his political system, the
body creating laws enjoys a clear supremacy26. This promotion of the legislator supports the notion of equality and is, also, favorable to the emergence of democracy. Accordingly, it favorises a deep transformation of
political reality on the European continent from 1789 onwards 27. Indeed,
thanks to the focus on statutes, there has been a particular strengthening of
parliamentary power on the said continent, either in place of a monarch, or
as a “complement” to an existing king28. On a macro-historical scale, it is
thus no exaggeration to say that the emergence of the Modern State, since
1789, consists of the passage from the principle of “rex facit legem” to the
maxim “lex facit regem” 29.
One must additionally say that this desire to strenghthen the legislative
power is exercised not only to the detriment of the executive, but also at
the expense of the judicative. In France for example, the courts established
after the fall of the Old Regime have the explicit prohibition of “taking
directly or indirectly part to the exercise of legislative power, or of pre-
22
See for example TRAPET M.-D., L’hypothèse de l’américanisation de l’institution judiciaire, in:
Archives de philosophie du droit (Vol. 45), 2001, pp. 117-135, pp. 128 & 135 (with different
crossreferences).
23
See e.g. BODIN J., Les six livres de la République, Aalen 1977, p. 223. See also GONIN (note
10), p. 26f. (with various crossreferences).
24
ROUSSEAU J.-J., Du contrat social ou Principes du droit politique, Amsterdam 1762, p. 47f. See
also BEHRENDT/BOUHON (note 17), p. 245.
25
Cf. not. ROUSSEAU (note 11), p. 86.
26
See e.g. CARRÉ DE MALBERG R., Contribution à la Théorie générale de l’Etat (Vol. II), Paris
1922, p. 10f.
27
See DE BECHILLON D., Qu’est-ce qu’une règle de droit ?, Paris 1997, p. 21.
28
See e.g. BEHRENDT/BOUHON (note 17), p. 277ff.
29
ZAGREBELSKY G., Droit en douceur – Il diritto mite, Paris/Aix-en-Provence 2000, p. 19.
5
venting or suspending the execution [of laws]” 30. Thus, the statute becomes, for Political Modernity, “the central concept of democracy” and its
author turns imperceptibly into a “mythical figure” who is supposed to
ensure, as much as possible, the rationality of political actions 31.
It is now necessary to examine whether these three key concepts of Political Modernity, as defined above, are still consistent with current sociolegal reality, or not. To achieve this analysis, one may for example examine the jurisprudence of the European Court of Human Rights (hereafter:
ECtHR). This Tribunal has indeed become a central actor in the European
region in the last decades. The proposed analysis will be done with a specific hypothesis in mind: henceforth, the ECtHR is more than just a judge,
it acts, from time to time, as a jugislator.
3.
The jugislator
3.1
Definitions
3.1.1
General definition
The jugislator might be defined as a magistrate from the judiciary branch
that plays a major role in the creation of legal dispositions, may it be directly or indirectly 32. Thus, this actor is not only clarifying the meaning of
norms created by the Parliament, but it also gives, independently, birth to
new legal dispositions 33. Equally important, the jugislator operates sometimes as a constituent power, even though the classic constitutional theory
never thought of the judiciary as such power.
Therefore, if it must, according to the civil law conception of separation of
powers, be attached to the judicative from a formal point of view, the
jugislator is actually invested – or it invests itself – of legislative, or even
constitutional and conventional, competencies. It should finally be noted
that the jugislator’s powers increase gradually as the legal provisions that
it co-defines lose normative density.
30
See Art. 203 of third year’s Constitution (1795) and Art. 10 of the 2nd Title of the French Law
from 16-24 August 1790. See also, FAVOREU L. et al., Droit constitutionnel, 11th Edition, Paris
2008, p. 289.
31
ROUSSEAU D., Droit du contentieux constitutionnel, 8th Edition, Paris 2008, p. 503.
32
On that topic, see also BEHRENDT C., Le juge constitutionnel, un législateur-cadre positif – Une
analyse comparative en droit français, belge et allemand, Brusells/Paris 2006, p. 2, pp. 7 & 131ff.
33
See also MOOR P., Pour une théorie micropolitique du droit, Paris 2005, p. 64.
6
3.1.2
Specific definitions
One must distinguish five specific types of jugislators: the indirect jugislator; the direct and moderate jugislator; the direct and dynamic (or even
immoderate) jugislator; the undecided jugislator and, finally, the contradictory jugislator. All these types fall within the general definition.
One can speak of an indirect jugislator when a tribunal participates, indirectly, to the development of statutes in a given area. Such is the case, for
example, when a decision made by a tribunal leads to a legislative reaction
of the Parliament 34.
One is in the presence of a direct and moderate jugislator when a court
participates immediately to the legislative activity by co-writing or rewriting a legal disposition by one of its judgments. Its decision, however, does
not depart from several methods of normative interpretation.
A direct and dynamic (or even immoderate) jugislator is a court immadietaly involved in legislative activity by co-writing or re-writting a legal
disposition by one of its judgments. In this variant, the tribunal however
chooses to depart from the legal solution implied by the use of different
methods of normative interpretation.
Regarding the undecided jugislator, two subcategories are to be distinguished. The first subcategory consists of tribunals which seem to want to
participate, ex post, in the drafting process of a legal provision by their
decisions, but which do not pursue their desire up to the end. The second
subcategory consists of judicial authorities which, over the years, make
decisions whose consistency is at least questionable, as if the said authority would proceed by “case law fumbling”.
It is, finally, to use the expression of contradictory jugislateur when the
same court varies in quite similar cases, for reasons that frequently are
beyond common understanding. This specific form of jugislator is problematic because it is hard to reconcile with the principle of legal security, a
central principle in every democratic society. Moreover, it should be noted
that the problematic nature of this specific type of jugislator is further in34
This type of jugislator, therefore, has similarities with the “negative legislator” as defined,
already, by KELSEN (KELSEN H., La garantie juridictionnelle de la Constitution [La Justice constitutionnelle], in: Revue de droit public et de la science politique en France et à l’étranger, 1928, pp.
197-257, p. 226; see also BREWER-CARIAS A. R., Constitutional Courts as Positive Legislators – A
Comparative Law Study, Cambridge et al. 2011, p. 5ff.).
7
creased when the contradicting solutions are handed down in a relatively
short timeframe by the same tribunal.
3.2
Evidences of the jugislator’s existence in the
European region
3.2.1
Introductory remarks
The presence of a jugislator in common law countries is not surprising. In
fact, the judge possesses wide powers in this legal tradition 35. The presence of a jugislator in civil law States is far more surprising, given the
philosophical views underpinning them 36. Several examples, drawn from
the ECtHR, serve nevertheless to underscore the relevance of the said concept for States from the European region. In the next paragraphs, cases
dealing by turns with the direct and moderate jugislator, with the direct
and dynamic jugislator, with the undecided jugislator and, finally, with the
contradictory jugislator, will briefly be presented 37.
In this contribution, the emphasis is put on judicial decisions which seem
particularly topical and not, therefore, on exhaustivity38. In each of the
following subsections, this paper will address right to life, religious freedom and, finally, freedom of expression issues, provided that these areas
contain examples worth mentioning to support our demonstration. These
rights and freedoms have been selected due to their particular interest for
this research.
3.2.2
Evidence of the presence of a direct and moderate
jugislator
The ECtHR acts as a direct and moderate jugislator on occasion. By way
of example, three different cases will be presented. The first decision is the
decision L.C.B. v. United Kingdom from 1998, concerning the issue of the
right to life 39. In this decision, the jugislators in Strasbourg deduced a positive obligation, for any public authority, to generally protect everyone’s
35
See e.g. FOYER (note 20), p. 3.
See above sec. 2.
37
For examples of indirect jugislation (in Germany), see e.g. GONIN L., Les droits de l’homme en
pratique – Le droit à la vie, la liberté religieuse et la liberté d’expression, et conséquences théoriques, Basel/Neuchâtel 2013, p. 244f.
38
For a more detailed development, see e.g. GONIN (note 37), p. 242ff.
39
ECtHR, L.C.B. v. United Kingdom, dated June 9, 1998, application no. 23413/94.
36
8
life from a conventional obligation to protect “by law” the right to life.
This case law leads, thus, to an undeniable expansion of the scope of the
right to life protected by Art. 2 § 1 ECHR 40.
In regards to religious freedom, the ECtHR equally acts as a direct and
moderate jugislator. For example, in its Chamber decision Lautsi v. Italy
from 2009, it excludes the compatibility of religious freedom, and similar
treaty norms, with the presence of crucifixes in an Italian class room 41.
The Grand Chamber judgment of 2011 – which comes to a diametrically
opposite conclusion – constitutes also an example of jugislative codecision of the concept of religious freedom, without departing deliberately from various and usual interpretative methods of norms 42.
Finally, concerning freedom of expression, the ECtHR works as a direct
and moderate jugislator, for example by specifying, over the years, the
areas that are not ethically entitled to benefit from this specific human
right. As a reminder, the denial of the Holocaust as well as profoundly
racist or hateful speeches can not benefit from the protection granted by
this freedom 43. In doing so, Strasbourg takes part in co-writing the treaty
provision, without clearly departing, however, from the normative framework provided by the ECHR.
3.2.3
Evidence of the existence of a direct and immoderate
jugislator
For this category, three especially instructive examples may be mentioned.
A case of direct and immoderate jugislation arises when the ECtHR considers, in its Grand Chamber judgment Oeneryildiz v. Turkey from 2004,
that the right to life that is “protected by law”, according to Art. 2 sec. 1
ECHR, does not exclude from its scope private activities 44. Indeed, given
the history of art. 2 ECHR, considering the systematic of the Convention,
and having finally regard to classic teleological interpretation of human
rights – which are designed to protect all individuals from violence, symbolic or real, committed by public authorities – such a rewriting of the
norm leads to a new obligation for the States. One may wonder, even today, whether such a new requirement is easily compatible with many
common methods of interpretation.
40
On that topic, see also GONIN (note 37), p. 39f.
ECtHR, Lautsi v. Italy, dated November 3, 2009, application no. 30814/06. See also GONIN
(note 37), p. 117f.
42
ECtHR (Great Chamber), Lautsi v. Italy, dated March 18, 2011, application no. 30814/06.
43
See e.g. GONIN (note 37), p. 189ff. (with many crossreferences).
44
ECtHR (Great Chamber), Oeneryildiz v. Turkey, dated November 30, 2004, application no.
48939/99, esp. § 71.
41
9
Moreover, if it is possible to classify Soering v. United Kingdom from
1989 in the category of decisions made by a direct and moderate jugislator
because the regional tribunal participates in the definition of art. 3 ECHR,
which prohibits torture, inhuman or degrading treatment, it seems more
correct to integrate this decision in the category of direct and immoderate
jugislation 45. Indeed, through this decision, the ECtHR indirectly condemns capital punishment, at least as applied in some states of the United
States, since the Court considers that the “death row syndrom” violates the
prohibition of torture according to Art. 3 ECHR. Therefore, Strasbourg
judges actually carry out an indirect rewriting of art. 2 of the ECHR, not
fearing to also raise questions of extraterritorial reach of their case law 46.
This case is particularly interesting since the judicial authorities of Strasbourg, in their decision Kirkwood v. United Kingdom from 1984, do not
estimate that the “death row syndrom” leads to a violation of art. 3
ECHR 47.
This direct and immoderate jugislation does not, however, only concern
the issues of death penalty and right to life. With respect to freedom of
expression, it may be noted that judicial authorities emphasize the dynamic nature of the ECHR, for example in the cases Tyrer v. United Kingdom
from 1978, Marckx v. Belgium from 1979 or Christine Goodwin v. United
Kingdom from 2002 48. By such assertions, the regional tribunal expresses
clearly its willingness to be a direct and sometimes very dynamic jugislator, having in mind to “reform and improve” human rights by its activity 49.
Therefore it seems that, over the decades, the willingness to participate in
the normative writing itself is plainly assumed by Strasbourg.
3.2.4
Evidence of the existence of an undecided jugislator
The decision Öcalan v. Turkey from 2005 offers, for its part, an example
of undecided jugislation 50. In this judgment, the judges in Strasbourg seem
to want to rewrite Art. 2 ECHR in § 163, before giving up their intention
45
ECtHR (Great Chamber), Soering v. United Kingdom, dated July 7, 1989, application no.
14038/88.
46
On that topic, see e.g. GONIN (note 37), p. 42f.
47
ECommHR, Kirkwood v. United Kingdom, dated March 12, 1984, application no. 10479/83, p.
220.
48
ECtHR, Tyrer v. United Kingdom, dated April 25, 1978, application no. 5856/72; ECtHR
(Great chamber), Marckx v. Belgium, dated June 13, 1979, application no. 6833/74; ECtHR (Great
chamber), Christine Goodwin v. United Kingdom, dated July 11, 2002, application no. 28957/95.
49
ECtHR (Great chamber), Christine Goodwin v. United Kingdom (note 48), § 74.
50
ECtHR (Great chamber), Öcalan v. Turkey, dated May 12, 2005, application no. 46221/99.
10
in § 165. The decision Al-Mufti Saadon v. United Kingdom from 2010 also
highlights the occasional work as undecided jugislator of the ECtHR 51.
Moreover, the ECtHR, at the time of deciding the exact outlines of religious freedom, is also having some difficulties. Thus, it does not hesitate
to punish solemn oaths formulas that refer to Christian traditions, while its
position on the presence of crucifixes is much more fluctuating 52. In regard to wearing of headscarves in public schools, the ECtHR seems to
have developed a constant practice in recent years, by banning such “head
attire” 53.
As for the specific issue of crucifix, it is not incorrect to say that an undecided jugislator, who finds himself at the intersection of the first and the
second variant of this form of jugislation, has ruled 54. Indeed, the said indecision concerns a single issue, a dispute between Lautsi and Italy, but it
is the result of two different decisions of the same court, albeit ruling in a
different formation 55.
3.2.5
Evidence of the existence of a contradictory jugislator
The same case, Lautsi v. Italy, is the most emblematic of the occasional
presence of a contradictory jugislator within the Council of Europe 56. Indeed, the same problem is solved diametrically differently in 2009 and
2011 by a single court, the ECtHR, although not deciding in the same
formation. In my opinion, the results of these decisions are particularly
unsettling, the Chamber’s decision being taken by seven votes against
zero, the Great chamber’s one, by fifteen votes against two, but in total
opposition to the judgement pronounced earlier 57.
3.3
Short synthesis
The previous short development shows that the figure of the jugislator is
not a purely theoretical one – or a symbolic one. De facto, different variants of jugislators can be found within the Council of Europe. Since the
presence of a jugislateur has been demonstrated, I suggest, for the said
51
ECtHR (Great chamber), Al-Saadon and Mufdhi v. United Kingdom, dated March 2, 2010,
application no. 61498/08, esp. § 120 and its conclusions concerning Art. 2 ECHR.
52
See GONIN (note 37), p. 114f. (with many crossreferences).
53
See GONIN (note 37), p. 118ff. (with many crossreferences).
54
On the two variants of undecided jugislator, see above 3.1.2.
55
On that dispute, see also above 3.2.2.
56
On that dispute, see again above 3.2.2.
57
On that litigation, see also GONIN (note 37), p. 117f.
11
Council, to give up the term of “judge” in order to prefer that of “jugislator”. This designation better reflects the current situation, at least where a
legal dispute relates to human rights or similar freedoms. It is now necessary to examine the specific problems arising from the existence, at the
international level, of a jugislator.
4.
About the international jugislator
4.1
Conventionnal and constitutional amendments
4.1.1
Two main differences
It should be noted a first major difference between a constitutional
amendment and a conventional amendment: the latter one is, in general,
far more difficult to get than a constitutional amendment. This situation
stems from the principle of State sovereignty which distinguishes a federal
State from the sphere of international law. Thus, if the Western States often require qualified majorities to amend their fundamental text, they do
not require ever – as far as I know – unanimity for this purpose 58. Such a
solution seems perfectly logical within a democratic society, since the
political debate and opinions’ divergences are inherently present in such
societies. On the contrary, international treaties can usually only be modified through a unanimous decision, as it is also the case for the ECHR 59.
A second point of interest must be signaled here: in many constitutional
systems, the legislature plays an important role, if not a dominant one, in
the amendment of the national constitution 60. Thus, one becomes aware of
the very close links between formal statutes on the one side, and the constitution, on the other, which is also entitled fundamental law in some
countries 61. By way of example, the proximity between legislative creation and constitutional amendment is particularly clear in Art. 192 sec. 2
of the Swiss Constitution: this article specifies that constitutional revisions
are usually “made by the legislative process”.
In addition, many States do not only grant the parliamentary body extensive powers in the field of constitutional modifications, they offer such
58
This is even true in the United States, where it is especially difficult to adopt a constitutional
amendment (see Art. 5 of the Federal Constitution of September 17, 1787).
59
See GONIN (note 37), p. 256 (with many crossreferences).
60
For Germany, the United States and Switzerland, see GONIN (note 37), p. 260ff.
61
In Germany, for example, the “Constitution” is entitled “Grundgesetz” which means, more or
less, Fundamental Law.
12
prerogatives to the historical “owner” of sovereignty: the people. Thus, in
Switzerland, people can submit to citizens and the federated states, a.k.a
the Cantons, a constitutional amendment 62, or even propose to the population a complete revision of the Constitution 63. In terms of international
law, without dwelling on the ratification procedures of each State, the legislature is, in general, much less involved in the creation of new international law, the executive branch and its administration having the lead in
this field 64.
Consequently, it is no exaggeration to assert that it is not only the required
majorities that distinguish conventional amendments from the constitutional amendments, but also the organs that traditionally play a key role in
their respective creation.
4.1.2
Consequences on the impact of the international
jugislator
4.1.2.1
An amplified impact
Both differences presented in the preceding paragraphs lead to an amplified impact of jugislation at the international level. Indeed, if corrections,
modifications or temperaments can be made at the national level through,
for example, constitutional amendments, such corrections are (almost)
impossible at the scale of the Council of Europe. The major difficulties
surrounding the adoption of Protocol no. 14 from 2004 bear witness to the
relevance of this assertion 65.
4.1.2.2
Influence of the jugislator’s type on the legal impact
It should be specified, however, that the impact of an international jugislator also depends on jugislator’s type at work in a concrete case. Thus, this
impact retains reasonable proportions when the international judicial body
acts solely as an indirect jugislator, that is to say that it participates only in
a mediate way to the development of law in a particular area, leading to a
Parliamentary reaction after its ruling 66.
The impact of a direct and moderate jugislator is already much greater,
given that decisions falling into this category also have a political con62
63
64
65
66
See Art. 139 sec. 5 of the Federal Constitution.
See Art. 138 sec. 2 of the Federal Constitution.
See HABERMAS J., Zur Verfassung Europas – Ein Essay, Berlin 2011, esp. p. 48ff.
See e.g. GONIN (note 37), p. 257.
See above sec. 3.1.2.
13
tent 67. From the point of view of legal theory, such a statement raises various questions. In particular, if the Strasbourg judges de not only participate at the regional judicial process, but are also playing a role in the political process as such, questions of legitimacy inevitably arise 68. The presence of such a variant of jugislator does likewise raise serious questions
about the contemporary relevance of the civil law conception of the judge,
as presented above 69.
These questions are even more vivid when one considers the direct and
immoderate jugislative activity, which has been previously demonstrated 70. Indeed, if a court participates immediately to legislative activity and
if it strongly departs from the legal norm, choosing to retain a solution
which is not in accordance with several methods of normative interpretation, is it drastically transforming the legal framework, in the same way as
a classic legislator or a derivative constituent power 71.
Regarding the undecided jugislateur, if one may regret this indecision,
which might arise from the complexity of human societies themselves, its
influence on contemporary legal architecture is more moderate 72.
Contradictory jugislation of the same instance, for example the ECtHR,
may have, depending on the chosen solution, a clear destabilizing effect.
This effect is especially dangerous for the legal stability of a region when
the contradictions, as in the Lautsi case, arise within a rather short
timeframe 73. Again, in this case, the lack of realistic conventional amendment, according to the ordinary course of things, underlines the major impact of the jugislator’s activity, especially at an international level. Accordingly, one should not underestimate the importance of the type of
jugislator at work in order to determine the exact impact of this postmodern legal actor.
67
68
69
70
71
72
73
See above sec. 3.1.2.
See e.g. GONIN (note 37), p. 351ff.
See below sec. 6.
See above sec. 3.2.3.
See below sec. 6.4.
See also above 3.1.2.
See also above sec. 3.2.5.
14
5.
Counter-powers, separation of powers and
checks and balances in the Council of Europe
5.1
Introduction
As seen, the principle of separation of powers has one main goal: “Avoid
concentration of power and the risks of abuse resulting from it” 74. It follows that it is not possible to imagine a truly democratic political system,
if it lacks what one might call “counter-powers”. Indeed, such counterpowers are the only instruments able to avoid, on the long term, dangerous
concentrations of power. It is therefore necessary to determine whether
there are effective legal counter-powers within the Council of Europe, or
not.
5.2
Juridical counter-powers within the Council of
Europe
5.2.1
Its main institutions
5.2.1.1. The Committee of Ministers
The Committee of Ministers is an important organ of the Council of Europe. All major decisions of this intergovernmental body are “subject to a
unanimous vote on account of its importance, require the unanimous vote
of the representatives casting a vote, and of a majority of the representatives entitled to sit on the Committee” 75.
It is interesting to note here that the Statute of the Council (hereafter: the
Statute) does not regulate the relationships between the Committee of
Ministers, for example, and the judicial authorities of the Council of Europe. This can be explained by the fact that their creation goes respectively
back to 1954 for the European Commission of Human Rights, and back to
1959 for the European Court of Human Rights, while the Statute goes
back to 1949 76.
74
MAHON P., Le principe de la séparation des pouvoirs, in: THÜRER/AUBERT/MÜLLER (eds),
Droit constitutionnel suisse, Zürich 2001, pp. 1011-1025, p. 1011 (my translation).
75
Art. 20 letter a) of the Statute of the Council of Europe, dated May 5, 1949. On pratical solutions currently used by the Committee, see EVANS P. / SILK P., Assemblée parlementaire: pratique
et procédure, 10th Edition, Strasbourg 2009, p. 42.
76
See also COUNCIL OF EUROPE, Le Conseil de l’Europe – 800 millions d’Européens, Strasbourg
2006, p. 32.
15
5.2.1.2. The Consultative Assembly
The Consultative Assembly, frequently referred to as the Parliamentary
Assembly, forms the other power expressly provided for by the Statute 77.
Composed of national delegations 78, the Assembly has clearly an advisory
role since it can only influence the Committee of Ministers by sending
recommendations that are not legally binding to the Committe 79. Notwithstanding, and to relativize the consultative nature of this body, the Consultative Assembly has the privilege, among others, to appoint the judges
sitting in the ECtHR 80.
5.2.1.3. The European Court of Human Rights
Since November 1st, 1998, the Council of Europe has a permanent ECtHR 81. The latter forms the third main organ of the Council of Europe.
This praetorian body acts, materially, as the judicial institution of the
Council of Europe in the field of human rights, an area henceforth concerning almost all parts of society82.
5.2.2
A few remarks
5.2.2.1
Absence of particularly effective counter-powers
If one considers the question of the presence of counter-powers within the
Council of Europe, the examples do not seem as obvious to find as in various Western States 83. Indeed, if the supervision of the execution of the
Court’s judgments falls within the competence of the Committee of Ministers 84, one can not notice a relationship of reciprocal control between the
said Committee and the ECtHR, an organ rather “protective” of its independence. Similarly, if the judges are elected by the Consultative Assembly, the juridical means of action of the latter in respect of the ECtHR are,
all in all, fairly limited.
77
See Art. 22ff. of the Statute.
See Art. 26 of the Statute.
79
See BENOÎT-ROHMER F. / KLEBES H., Le droit du Conseil de l’Europe – Vers un espace juridique paneuropéen, Strasbourg 2005, p. 75.
80
According to Art. 39 ECHR.
81
See COUNCIL OF EUROPE (note 76), p. 32.
82
See also COUNCIL OF EUROPE (note 76), p. 33. Other less influent bodies exist within the Council of Europe (see GONIN [note 37], p. 276 [with various cross-references]).
83
For a brief comparative analysis of various States, see GONIN (note 37), p. 269ff. (with many
cross-references).
84
See Art. 46 sec. 2 ECHR.
78
16
Moreover, as regards States forming the Council of Europe, it is not possible for them to change the Treaties establishing the international organization, at a simple or a qualified majority. Therefore, they can not be compared to, e.g. the Cantons in the Swiss legal system, and it seems therefore
difficult to argue that they form effective legal counter-powers within the
regional juridical system 85.
Consequently, it is no exaggeration to advance the absence of particularly
developed counter-powers within the Council of Europe.
5.2.2.2
Towards a “hypertrophied” judicial power?
The previous development points towards the development, on a regional
level, of a particularly strong judiciary power – some will even advance
the adjective “hypertrophied” –, a power that knows no real legal counterpower. In my opinion, this evolution may undermine the separation of
powers in its civil law variant or even make it completely obsolete 86.
5.3
Intermediary synthesis
It can be argued that the international jugislator, within the Council of
Europe, enjoys a rather unique position in legal history. In my view, this is
due to various causes. Firstly, this “extraordinary” position is favored by a
construction by stages, as evidenced by the parallel existence of two main
treaties and numerous subsequent Protocols 87. Secondly, this interesting
situation is encouraged by a particularly dynamic understanding of the
judicial function by those who must exercise it 88. Thirdly, and this is perhaps the main reason for the current situation, the international jugislator
strongly impacts contemporary empirical reality because of the absence of
effective counter-powers within the legal order of the Council of Europe.
In my view, it should also be noted that the issues raised by the emergence
of a jugislator at a regional level are also due to the fact that separation of
powers’s doctrine has, for generations, primarily “set its eyes” on the rela-
85
The problematic of potential political means of pressure will therefore not be developed, this
contribution focusing on legal questions.
86
See below sec. 6.
87
Today, around 15 ECHR’s Protocols have entered into force, leading PETAUX to assert that the
ECHR is “under perpetual construction” (PETAUX J., L’Europe de la démocratie et des droits de
l’homme – L’action du Conseil de l’Europe, Strasbourg 2009, p. 180) (our translation).
88
See above sec. 3.2ff.
17
tions between the executive and the legislative, making the judiciary the
minor body of the Modern “constitutional trinity” 89.
6.
Towards the end of the civil law variant of
separation of powers?
6.1
Preliminary remarks
With the exception of the British Islands, continental Europe, including
the Russian Federation, belongs to the civil law legal tradition 90. It is
therefore marked by the predominance – at least historically – of Codes as
well as of Statutes in general 91. This tradition has also strongly influenced
the principle of separation of powers, the latter frequently granting only a
secondary and subsidiary importance to the Praetorian function, as demonstrated above 92. I therefore sought to construct a civil law ideal type of
separation of powers, which is characterized by a clear determination to
refuse confusion of powers, by the desire to ensure the primacy of Statutes
and by a rather strong distrust of the judicial power 93. Several reasons exist, today, for abandoning the separation of powers in its civil law variant
in the European region.
6.2
Reasons for abandoning civil law variant of
separation of powers
Firstly, it was found previously that the judicial function has now acquired
such importance in the European region that it has given rise to an international jugislator: the EctHR 94. Secondly, the separation of powers, as conceived in the civil law region is intrinsically linked to the idea of
“reciprocal control” of the various political powers 95. As demonstrated,
89
For the possible historical reasons leading to such a focus on legislative and executive functions, see e.g. GONIN (note 10), p. 58.
90
See FERRARI G. F., « Civil law » e « common law »: aspetti pubblicistici, in: CARROZZA/DI
GIOVINE/FERRARI (eds), Diritto costituzionale comparato, Rom/Bari 2009, pp. 645-673, p. 657.
91
See FLÜCKIGER and DELLEY (with cross-references), L’élaboration rationnelle du droit privé : de
la codification à la légistique, in: CHAPPUIS/FOËX/THÉVENOZ (eds), Colloque en l’honneur du
professeur Gille Petitpierre – Le Législateur et le droit privé, Geneva/Zurich/Basel 2006, pp. 123143, p. 129.
92
See above sec. 2.2.
93
See above sec. 2.1.
94
See above sec. 3.2.2ff.
95
For the examples of France, Germany and Switzerland, see e.g. GONIN (note 37), p. 270ff.
18
such a control does not exist within Council of Europe 96. Thirdly, the civil
law separation of powers attaches great importance to the functional division of those powers 97. The emergence of a jugislator in the European region, which contributes sometimes greatly to the legislative creation in the
field of human rights, is not compatible with this functional division of
powers 98.These three arguments lead me to affirm the disappearance of the
separation of powers in its civil law variant.
In addition, one can not say that continental Europe merely reproduces the
Anglo-Saxon variant of the separation of powers. Indeed, this variant attaches great importance to the principle of checks and balances, which
does not exist for the Council of Europe 99.
6.3
A Particularly delicate development
The development presented above shows that there is a form of “explosion” of different principles inherited from Modernity, including the separation of powers in its civil law variant. Thus, the judge no longer only
applies the law, he or she creates it. At the same time, the ECtHR’s judge
does not perform a review of the legality, or of the constitutionality, of a
decision: the legal expert controls its conventionality itself! Therefore, the
distinction between national and international law falls. Such a major evolution can only raise various, and complex, legal questions regarding the
role of the various legal bodies, national and international 100.
6.4
The emergence of a new derived constituent power
These developments also point out that the Strasbourg tribunal, henceforth, does not merely control the “legality” of national decisions. Instead,
it acts from time to time as a derived constituent power. Indeed, by its
judgments, it shall review the ECHR and its Protocols, acting ultimately
on questions of cardinal importance for European societies. In this way, it
creates materially constitutional norms, but of course not formally constitutional ones 101.
96
See above esp. sec. 5.2.2.1.
See above sec. 2.1.
98
This is particularly the case when the judicial power is acting as a direct and energic jugislator.
On ECtHR’s case law, see also FOYER J., La jurisprudence de la Cour européenne des droits de
l’homme, in: Archives de philosophie du droit (Vol. 50), 2006, pp. 239-246, p. 239ff.
99
See above sec. 5.2.2.
100
See below sec. 7.
101
On the constitutional pretentions of the ECtHR, see e.g. ECtHR (Great chamber), Loizidou v.
Turkey (preliminary exceptions), dated March 23, 1995, application no. 15318/89, § 75; see also
ECtHR (Great chamber), Al-Skeini and al.v. United Kingdom, dated July 7, 2011, application no.
97
19
7.
Problems raised by the current legal situation
7.1
A qualified procedural problem
There is a broad consensus that the power to revise the constitution must
be set by the Constitution itself. Regarding the ECHR, as it is a treaty of
public international law, it must be revised unanimously; indeed, the
ECHR does not provide for special rules on the subject. Therefore, revisions by a judicial body, moreover by a simple majority, pose a qualified
procedural problem, not to mention herein the issues of democratic legitimacy of such a situation... One might even wonder whether the ECtHR
might not be, from time to time, guilty of “constitutional hold-ups”.
7.2
A legitimacy situation and the risk of potentially
unbridled decisions
For now several centuries, the specific value of law is based, on the European continent, on its democratic legitimacy. The law created by a court
does not possess such legitimacy, especially when it involves societal
choices. Thus, a legitimacy situation also arises from the current functioning of the ECtHR. In addition, due to the absence of checks and balances
solutions on a regional level, one can not exclude that the ECtHR acts in
an “unbridled way” from time to time. This danger has also been stressed
by various authors 102.
8.
Conclusion
Since the rise of the rule of law, the individual has benefited from the ideal
of the separation of powers in its civil law variant on the European continent; thanks to this ideal he enjoyed, in general, a great liberty. According
to this tradition, the judge’s role is usually only secondary, the legislature
enjoying the prestige of the law 103. However, this division of tasks no
longer corresponds, today, to postmodern reality, which is characterized
by the emergence of the figure of the jugislator. As we have seen, this new
contemporary legal actor does not fit the traditional division of powers
55721/07, § 141. On internationalisation of “constitutional case law”, see also HERTIG RANDALL
M., L’internationalisation de la juridiction constitutionnelle : défis et perspectives, in: Revue de
droit suisse (no. 129/II/2), 2010, pp. 221-380, p. 242ff. (with many cross-references).
102
See e.g. FOYER (note 98), p. 244.
103
See above sec. 2.2 and 2.3.
20
between members of the executive, legislative and judicial. In my view, its
activity is much more revolutionary than it seems, because the jugislator
operates occasionally as derived constituent power, despite the acute difficulties that such functioning raises for many States, in terms of legal theory. These difficulties are even greater when the jugislateur is active in the
international arena.
Concretely, the emergence of an international jugislator signifies the disappearance of the separation of powers, in its civil law version, in the European region because it transforms the judicial function into a core function of the legal system; because it is hardly compatible with the ideal of
mutual legal control; because it seriously challenges the functional separation of powers, as the legislature, the executive and the judge are sometimes all heavily involved in the creation of law; because it, finally, clearly
blurs the distinction between law, constitution and convention, the
jugislateur taking part in the continuous rewriting of international law itself 104. One may well, therefore, wonder whether the outlined development does not form a legal revolution whose magnitude is able to compel
the European region to develop a renewed theory of law.
Furthermore, one must emphasize herein that the primary cause of this
“legal revolution” is the alliance of the creative power of the judge and his
room for maneuver at the conventional level. In fact, this development –
that the involved actors may wish or not – leads to a form of concentration
of power that is not consistent with the civil law variant of separation of
powers and that does not embrace neither, by lack of an effective system
of checks and balances, its Anglo-Saxon form. Thus, the judicial branch of
power might still not be, today, the first power in all cases. Nevertheless,
thanks to the appearance of the jugislator on an international level, it currently plays a major role in the field of human rights and, maybe, the first
one. This is a great occasion to rethink theory of law and, also, the ideal of
separation of powers…
104
One might assert that the ECHR, today, is convenstitutional law, which means a law that is not
constitutional law, but also not classic conventional law anymore.
21