It has been a long time since the legally competent judge (gesetzlicher Richter) caught my attention. Until now, the research on its origins and consequences in the German-language monograph Recht und Justizhoheit (second edition Duncker & Humblot 2009) attracted some notice from the Anglophone world owing to Lord Hope’s preface. The opening to a broader Anglo-American readership has in more recent times become essential. In particular, this is due to the impact of this monograph on the understanding of the fair trial guarantee of the European Convention of Human Rights (ECHR), together with the perceived sensitivity for the European protection standards of the judicial independence. As recently as February 2018, as its obiter dictum in the judgment about the reduced salaries of the judges of the Portuguese Tribunal de Contas, the European Court of Justice confirmed that judicial independence in the Union requires ‘complete autonomy’ of judicial functions ‘without being hierarchically connected to or subordinate to any other authority [by]… receiving orders or instructions.’ Ten months later in April 2019, the explicit ban of any ‘external interventions or pressure liable to impair the independent judgement’ guides the Advocate General Tanchev’s opinion in the run-up to the European Court of Justice’s ruling on the European Commission’s contractual infringement proceedings against Poland. The lowering of the judges’ retirement age in the ‘Polish Law on the Supreme Court’ of April 2018 has been held to violate European judicial standards, thereby placing the rule of law at risk. The disrespect of the principle ‘that [a judicial] body concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraint,’39 is not isolated. Hungary’s judiciary in 2019 is no longer what it was when Hungary joined the European Union in 2004. The situations in Romania, Bulgaria, and Ukraine are similarly gloomy; they simply attract less attention in the eyes of the media. The historically-grown European protection standards of judicial independence and their conventional framing in the ECHR as a whole risk losing their credibility and authority if such erosions remain unaddressed.
This is the hour of this book, building upon these foundations but heavily expanded, revised, and collated in English. It is to be hoped that historical reasoning behind modern international law may have the convincing force to pull the plug on any retrograde exaggeration of nationalisms. The more the common European consensus is questioned by nationalist egoisms and populist infantilizing, the more persuasive European beliefs (and a belief in Europe) need to be. Science is happy to contribute, especially as the learned judge, the iurisperitus, was the first (continental) ordinary judge whose competences stood not only for institutional independence of the judiciary, but especially for the predictability of the decision, adhering only to the rules of the law.
The European Research Council Advanced Grant ReConFort (Reconsidering Constitutional Formation, 2014–18) provided me with both the support and the opportunity to revisit and reevaluate the texts and sources from the German monograph. As a result, this text is far more than a translation (as done for Dykinson in 2014 as El juez legal). Within the grant context of constitutional history, the pre-constitutional forging together of judicial competences with procedural rationality and its related complementarity of procedural and substantive justice became even more visible. This laid the foundation for the rule of law practice in Renaissance Europe, far earlier than the advent of liberal constitutionalism of the nineteenth century. This book’s eye to the past in this instance is also its glimpse to the future, in which the common heritage of the rule of law practice incorporated in ordinary judicial competences binds Europe together rather than forcing it apart.
Lord Robert Reed and his former judicial assistant Eleni Dinenis (Serle Court, Lincoln’s Inn) were the driving force behind my insights into the administration of the Supreme Court of the United Kingdom and the current legislative status in regard to the English judiciary and courts. My allied colleague Mark Godfrey (Glasgow) provided keen insights into some Scottish peculiarities. Advice on contemporary French court organization was provided generously by Julien Boudon (Université de Reims) and Pierre Serrand (Université d’Orléans). Gonzague Prod’homme (University of Passau) did not spare any effort to correct my English paraphrasing of French legal texts.
All English translations of foreign sources be it historical or contemporary are my responsibility, unless otherwise noted. Dr. Bodie Ashton’s final editing gave me the confidence that the text in its entirety will also convince native speakers. Our discussions on the native speaking language ductus sometimes inspired my line of arguments. The idea to conclude this book with Britten’s The Young Person’s Guide to the Orchestra was his, for which I owe him thanks. The series editors Dirk Heirbaut, Remco van Rhee, and Matthew Mirrow have given full-hearted support to this work, as has the history editor at Brill, Wendel
Finally, I owe much to Maria Domes, Patricia Finkenberger, Christl Rösch, and Elisabeth Schneider for their friendship. Their unshakable trust, and the strong backing of my family turned any pain into pearls. This volume is dedicated to these wonderful compagnions, and especially to my husband Guntram. All my results are ours.
Ulrike Müßig
Passau, March 2019
Opinion Advocate General Tanchev in Case C-619/18 (https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-04/cp190048en.pdf, last accessed 12.4.2019) and several cases concerning the independence of the Polish judiciary (C-537/18, C-563/18 (pending); C-522/18, C-585/18, C-624/18, C-625/18, C-668/18). Cf. also the Opinion No. 904 / 2017 of the Venice Commission (https:www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)031-e, last accessed 1.2.2019).