Ten years have passed since the publication of the second edition of Professor Müßig’s monograph, tracing the historical origins of the modern European consensus as to certain fundamental aspects of the judicial role, as seen for example in Article 6 of the European Convention on Human Rights, in the histories of the judicial systems of some of the countries from which Europe is constituted.
In the United Kingdom, that decade has coincided with the first ten years in the life of the Supreme Court, and the development of its role as a constitutional court, adjudicating on questions of human rights, on the legal issues arising from the devolution of legislative and executive power from the UK Parliament and Government to separate institutions in Scotland, Wales and Northern Ireland, and on constitutional questions arising in the aftermath of the 2016 referendum on membership of the European Union. While the result of the referendum revealed the degree of disenchantment felt in the United Kingdom with the European Union, the subsequent debate has also demonstrated the degree of importance attached to Britain’s continued membership of what might be called, in a wider and non-technical sense, the European community.
In France too, the past decade has seen significant developments in the role of the courts, including the introduction before the Conseil constitutionnel of the question prioritaire de constitutionnalité, and the evolution of that body into an institution of a more recognisably judicial character. In Germany, there have been controversial changes to the criteria governing alterations to the allocation of pending cases to judges: a matter of particular importance according to German conceptions of constitutionalism. At the supranational level, there have also been important developments, including the rejection by the Court of Justice of the European Union’s proposed accession to the European Convention on Human Rights. Both that court, and the European Court of Human Rights, have also had to confront threats to judicial independence and the rule of law in Poland, Hungary and elsewhere in central and eastern Europe. At the same time, a number of European societies have had to face internal dissension, including serious violence, from those who reject the core values of European civilisation, such as democracy and human rights.
This, then, is a timely moment for Professor Müßig to have revisited the history of European conceptions of the judicial role, and to have brought her
She goes on to show how the interplay between these different traditions, and the elements which they have in common, have contributed to the creation in modern times of a common European approach at the supranational level. This is exemplified by the way in which the European Court of Human Rights has drawn upon a European judicial inheritance in interpreting and applying the guarantee of a fair trial in Article 6 of the European Convention.
Both the European Union and the Council of Europe have made judicial institutions, and the establishment of a body of law, central to the creation of common European approaches to matters falling within their ambit. But in order to succeed in their task, those institutions have had to base their approach on principles on which the member states can generally agree. The successful operation of the European Court of Human Rights, in particular, has depended on recognising, and building on, fundamental values which different national legal systems have in common, and which have their roots in a shared European cultural tradition. They include the values which find expression in the concepts of the rule of law, the Rechtsstaat, and the État de droit, such as the independence of the judiciary, the right of access to a court, and the right to a fair trial: values which are reflected in Article 6 of the European Convention. At the same time, it has also been necessary for the court to understand, and to accommodate, differences between national traditions which do not undermine the protection of the guaranteed rights. The achievement of the European Court of Human Rights has been based on an acceptance of what Professor Müßig describes as ‘local methods of working towards and safeguarding the law’s ultimate, shared objective.’
For anyone wishing to understand the modern European conception of the judicial role, this work provides a valuable explanation of its origins in the historical development of the judiciary in three of Europe’s most influential legal
Professor Müßig’s central thesis in this work is that ‘Europe is united through a specific European idea of justice.’ She persuasively demonstrates the validity of that thesis, notwithstanding the challenges which it currently faces on a number of fronts.
Robert Reed
The Supreme Court
London, February 2019