Internationale Handelsgesellschaft, Nold and the New Human ...

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suffice to briefly highlight some issues. Many of the institutional and doctrinal questions raised are not new and have been discussed in the context of general discussions about the ECJ as a court. But these questions appear in a new light and might require reassessment once the nature of the task the ECJ has carved out for itself by adopting a rationalist human rights paradigm has become apparent. The first set of questions present direct challenges to a rationalist conception of rights, in which the real work in deciding concrete cases is done within the framework of proportionality analysis. Are there really rational standards available that allow for a meaningful distinction between measures that are proportional and those that are not? Call this the incommensurability challenge. Even if there are such standards, their specific content is likely to be subject to considerable disagreement, either abstractly or on application. To the extent that is the case, it is not clear why courts rather than politically accountable actors should have a comparative institutional advantage in assessing the proportionality of publicly endorsed policies. Furthermore this conception of rights seems to be insufficiently specific and determinate to provide either citizens or political actors with much guidance. Finally it is questionable whether a structure of rights that puts proportionality front and center can adequately reflect the commitments central to the liberal constitutional tradition. In the liberal tradition rights are generally conceived as ‘trumps’ 26 over countervailing considerations of policy or as ‘firewalls’ 27 providing strong protections against the demands made by the political community. Does a conception of human rights that focuses on proportionality analysis, allowing rights to be overridden whenever sufficiently weighty general interests are at stake, actually do justice to the idea of liberal rights? This is a question with important practical ramifications. If everything is subject to proportionality analysis, what explains, for example the categorical prohibition of torture, even in circumstances when a great deal might be gained by torturing a criminal suspect? And was a recent German Constitutional Court decision wrong, when it struck down a law which authorized shooting down a civilian plane about to be used as a platform for a terrorist attack in cases where the 26 R. Dworkin, What Rights Do We Have?, in: Taking Rights Seriously (OUP 1978), 266. 27 J. Habermas, Faktizität und Geltung (Suhrkamp 1992).
number of persons saved is considerably greater than the number of persons killed? 28 If such an authorization was one day provided by EC Law, would it stand? A better understanding of the place and limits of the proportionality requirement is called for, to more convincingly address these and other issues. 29 The second type of issues concerns questions relating to the institutional structure of the court and the way that judicial opinions are written. If European courts as adjudicators of rights are engaged in the kind of open-ended assessment of policies that the proportionality test calls for, it becomes inevitable that they will have to engage and pass judgment on complex policy questions that may involve controversial empirical and moral judgments. Taking for granted that the ECJ should have an important role to play along these lines, how should an openly rationalist, non legalistic understanding of its task influence the style that opinions are written in? Should courts not, in the interests of transparency and clarity be required to write more elaborately reasoned, discursive opinions, rather than using the cryptic formulations that often cover up difficult choices and competing reasons that the court confronts? Of course the more elaborately reasoned opinions if the Advocate General provides some degree of compensation 30 and the ECJ has become somewhat more discursive in recent years. But more might be called for. Indeed the case for allowing dissenting and concurring opinions might also have to be reassessed. And if a court were to more openly address its internal controversies, it would also be necessary for more politically exposed judges to be immunized from political blowback. Like their brethren on most constitutional courts it might be a good idea to appoint them for a longer term (say 10-12 years), without the possibility of reappointment. An open recognition of the court’s role in rational policy assessment under its non-legalist conception of human rights might require a reevaluation of these questions and support a change in practice. 28 BVerfGE 115, 118 (2005). 29 For an attempt to do so see M. Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement, in: G. Pavlakos (Ed.), Law, Rights, Discourse: The Legal Philosophy of Robert Alexy (2007), 131, at 153-162. 30 See M. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (OUP 2004).
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