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Judicial Neutrality

Siniša Rodin, Giudice della Corte di giustizia dell’Unione europea, Lussemburgo.

L’Autore tratta della neutralità dei giudici in quanto elemento essenziale di un liberalismo costituzionale. Si sostiene che all’interno della tradizione del liberalismo costituzionale la tensione tra democrazia maggioritaria e stato di diritto è risolta a favore di quest’ultimo da un’istituzione di giudici che agiscano al fine di proteggere i valori su cui si basa il liberalismo costituzionale. Posto che i giudici appartengono ad una tradizione di liberalismo costituzionale, essi ritengono che tutto ciò sia logico e normale. Di conseguenza, le statuizioni finali dei giudici appaiono neutrali agli occhi di coloro che condividono la stessa tradizione. Potrebbe non essere lo stesso per coloro che condividono tradizioni differenti.

PAROLE CHIAVE: neutralitÓ dei giudici - democrazia - stato di diritto - liberalismo costituzionale - tradizione

Author discusses judicial neutrality as an essential element of constitutional liberalism. It is argued that within the tradition of constitutional liberalism the tension between majoritarian democracy and the rule of law is resolved in favor of the latter by agency of judges acting as protectors of values on which constitutional liberalism is based. Since judges are participants of the tradition of constitutional liberalism, they see it as commonsensical and normal. Accordingly, judicial outcomes appear neutral for participants of the same tradition. It may not be the same for participants of other traditions.


Judicial Neutrality – Democracy – Rule of Law – Constitutional Liberalism – Tradition.


I. Democracy and the Rule of Law. - II. Elements of constitutional liberalism. - III. Judicial Neutrality. - NOTE

I. Democracy and the Rule of Law.

Democracy and rule of law are foundational principles of the European Union. The Treaty on European Union refers to them in the Preamble, as well as in Articles 2, 10 and 21. They are invoked in the Preamble of the Charter of Fundamental Rights of the EU. They also make part of political criteria for membership of EU, as defined by European Council in Copenhagen in 1993 [1]. However, despite of the fact that democracy and rule of law are often mentioned together, one should conclude that there is no tension between the two. While democracy entails political participation and representation based on the free and fair elections, rule of law is concerned with boundaries and restraints. A recently proposed Regulation [2] specifies that: «[t]he rule of law requires that all public powers act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. It requires, in particular, that the principles of legality, legal certainty, prohibition of arbitrariness of the executive powers, separation of powers, and effective judicial protection by independent courts are respected». Together, democracy and rule of law constitute a backbone of liberal democratic order. Fareed Zacharia nicely explained the tension between democracy and legal restraints by making a distinction between constitutional liberalism and democracy and arguing that the two do not always go hand in hand [3]. Namely, constitutional liberalism does not automatically make a political system democratic. In his view, Habsburg monarchy was a liberal autocracy [4], whereas certain contemporary political systems can be characterized as democracies without liberal constitutional component. In that sense, democracies can be illiberal and constitutional liberalism can be non-democratic. For Zacharia, constitutional liberalism «… is not about the procedures for selecting government, but rather government’s goals. It refers to the tradition, deep in Western history, that seeks to protect an individual’s autonomy and dignity against coercion, whatever the source – state, church, or society» [5]. Admittedly, in liberal democracy, constitutional liberalism with its counter-majoritarian mechanisms such as federal structure and judicial review, will always restrain democracy, which is intrinsically majoritarian. Since democracy [continua ..]

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II. Elements of constitutional liberalism.

Judicial independence, impartiality and neutrality are essential elements of constitutional liberalism. However, it is important to recognise that, while independence and impartiality are not tradition-sensitive and can operate across traditions, judicial neutrality is tradition-specific [10]. Another difference between the three concepts is that independence and impartiality primarily refer to the question “how courts operate” while neutrality primarily refers to the question “why” or, “to what end”. And, within liberal tradition, the answer to that “why” is – to allow the citizens to pursue their individual ideas of good. Since that is possible only where certain idea of good is not determined by majoritarian means and made the universal code of conduct, liberal neutrality is possible only once liberal order is secured on constitutional level. Indeed, outside tradition of constitutional liberalism, it would be possible to imagine courts that would be independent and impartial while not neutral. Conversely, in order to be neutral in liberal sense, courts cannot be neutral in constitutional sense. For example, to uphold equal treatment for men and women in a particular case, the principle of equal treatment needs to be secured on constitutional level. The constitution needs to be biased towards equality and, what is more, courts have to act as agents of that principle. While that agency requires fidelity to laws that become neutral to participants of liberal tradition, liberal neutrality may also necessitate tilting a balance between different rights in each individual case in order to protect a weaker party [11]. At this point it is important to distinguish judicial independence, impartiality and neutrality. The CJEU laid down the narrative of judicial independence in the Portuguese Judges case [12]. The reference for preliminary ruling from Portuguese Supreme Administrative Court inquired whether Article 19(1) TEU [13] precludes general salary-reduction measures to be applied to national judges, in the concrete case members of the Court of Auditors. After having asserted the values enshrined in Article 2 TEU on which the EU is based, the Court continued to explain that the principle of mutual trust assumes «that Member States share a set of common values on which the European Union is founded» [14]. The Court continued by stating that EU is based on [continua ..]

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III. Judicial Neutrality.

Once requirements of judicial independence and impartiality are met and judges are bound only by law the problem of neutrality still remains, the main problem being that participants to the tradition within which adjudication takes place may see some judicial decisions as neutral while observers of that tradition may see it as biased. The reason why that is so, I will suggest, is that neutrality is tradition specific.  In not so frequent occasions where the Court of Justice overtly refers to neutrality, it does not always clearly distinguish it from independence and impartiality. Apparently, while independence and impartiality are defined objectively, neutrality seems to refer to appearance, that is, to how a court becomes to the observers. [22] However, those objective characteristics seem to be a condition for creating an appearance of neutrality. Only a court that possesses such objective characteristics is capable of creating an appearance of neutrality in the eyes of observers. In the words of the CJEU, in order to be neutral a court has to «… dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it» [23]. If courts are supposed to create an appearance of neutrality, what kind of judicial outcomes should they deliver and against what criteria should such outcomes be measured? Paul Feyerabend assumes that traditions are unaware of their historical grounding. For him, traditions are neither good nor bad, they just are. They assume desirable or undesirable properties only when compared with another tradition [24]. However, as nothing stands in absolute isolation, there has to be at least some awareness, within the tradition, of the world-outside-tradition, a notional hors-tradition, or an imaginable absence of one’s own tradition. In that way a tradition (re-)constitutes itself in opposition to notional hors-tradition, without having to be aware of particulars of any other specific tradition. In such circumstances criterion for determining desirable and undesirable outcomes is tradition itself and only those outcomes that perpetuate the tradition are desirable. That is why the judiciary belonging to tradition of liberal constitutionalism defends and perpetuates that tradition when it delivers outcomes viewed as neutral from the liberal point of view. And absence [continua ..]

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