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American Journal of International Law
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JOSE ENRIQUE ALVAREZ
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American Journal of International Law, vol. 1 (January 2016), http://www.ajil.info
AMERICAN JOURNAL
OF
INTERNATIONAL LAW
VOL.111
February 2016
CONTENTS
Editorial
NO.2
PAGE
Unification of the Application of International Law in the Municipal

Realm: A Challenge for Contemporary International Law
12
A.O. Enabulele and C.O. Imoedemhe
The Uses of Analogia Iuris in the Louisiana Code of Practice (1825)*
24
Shael Herman
Un couple surprenant: prescription extinctive et libert contractuelle
Sylvette Guillemar 52
Judicial Review under the Irish Constitution: More American than
Commonwealth
Seamus OTuama
Legal Language and the Process of Drafting the Principles on a European Law of Sales
Viola Heutger
The Legal Aspect of Ensuring the Freedom in Modern Society
Garib Allahverdiyev
International Law in Domestic Systems
E.A. Alkema
74
96
118
127
Cross-border Successions. The New Commission Proposal: Contents 152

and Way Forward. A Report on the Academy of European Law Conference of 18 and 19 February 2010, Trier
Eveline Ramaekers
159
Necessity To Engage With The Elements Of Judicial System
And Its Impact On The Provision And Development Of Justice
And Security
Vali ShirPour
Judicial Loyalty Through Dissent or Why The Timing is Perfect 175
for Belgium to Embrace Separate Opinions
Bart Nelissen
190
The Influence of the Post-war European Constitutions on the
Constitution of the Irish Free State
Laura Cahillane
Constitutional Fidelity throughout Time. A Comparative Survey
202
Anna Silvia Bruno

"Agile Alliances" line in Azerbaijan-USA relations
Ramazan Uslu
219
238
Homosexuality and Child Custody through the Lenses of Law:
Between Tradition and Fundamental Rights
Denise Amram
258
Ajil Submissions
Editorial
Codification is en vogue again: the Netherlands introduced its new patrimonial law on 1
January 1992; Germany set in force its modernized law of obligations on 1 January 2002;
Brazil replaced its Cdigo civil of 1916 by the Novo Cdigo Civil Brasileiro of 2002; and
Russia, China and many East European countries which formerly had legislations of really
existing socialism, have introduced new Civil Codes or are working on them. And France
is following all of these developments in steps: the traditional three-book structure of
the Code civil has been abandoned through the addition of a new Book 4 on security rights;
the law of prescription has been recodified; and there is a great deal of discussion about the
academic avant-projet de rforme du droit des obligations (also known as the Catala project, Ministre de la Justice, July 2016, available at http://www.dimitri-houtcieff.fr/files
and about a draft by theAcadmie des Sciences Morales (cf. the blog http://www.dimitrihoutcieff.fr, entry of 14 November 2008). In general private law, things in Europe and
sometimes elsewhere are on the move
In the European Union, discussions on a Common Frame of Reference for European Contract Law are continuing. Performing an EU study contract, a group of academics presented and published an Academic Draft Common Frame of Reference (DCFR), which relies
heavily on the Lando Principles of European Contract Law, but covers wide new fields and
tries to integrate the acquis of the existing EU private law regulations and directives. However, at the moment a European Code of Obligations does not seem to be taking shape: Le
rve est fini (The dream is over) exclaimed one of the speakers Denis Mazeaud at a recent conference organized in Paris by the French EU-Presidency of the second semester of
2008 on the subject Which European Contract Law for the European Union?
(seehttp://www.justice.gouv.fr/index.php with a video of the opening speech of Justice
Minister Rachida Dati). According to the positions and reports adopted by the Council of
Justice and Home Affairs Ministers of the EU on 18 April (see Oliver Remien, Zweck,
Inhalt, Anwendungsbereich und Rechtswirkung des Gemeinsamen Referenzrahmens:
Eine erste Analyse des Standpunktes des Justizministerrates vom 18.4.2008:
Gemeinschaftsprivatrecht 2008, 124-128) and 27 and 28 November 2008 (see Press Re-
lease 16325/08, and document 15306/08, available at http://www.consilium.europa.eu), a

Common Frame of Reference for European Contract Law will be drafted, but in a much
more restricted manner than the academic DCFR. As to its structure, it will consist of definitions, common fundamental principles and model rules; as to its scope, it will preferably deal with the general law of contracts, also include consumer contracts as in the proposed directive on consumer rights of 8 October 2008, and possibly special contracts falling within the consumer acquis might be included at a later stage. In view of the diversity
of legal traditions, alternative solutions on certain subjects could be presented. The Council, the European Parliament and the Commission will be involved in setting up the Common Frame of Reference, which according to the April position will be a non-binding instrument to be used by the lawmakers at Community level. It is true that the European
Parliament wants more and has passed a new resolution on the common frame of reference for European contract law on 3 September 2008 (http://www.europarl.europa.eu),
but in the EU, the Council and the Member States (and hopefully their parliaments) still
hold a key position. Thus, national codifications will continue to blossom in Europe. National legislators are trying to develop good private law legislation for their respective
countries and to a certain extent they also try to increase their appeal on the scene of European harmonization of private law. It is less a competition of legal systems than it is of
legislators; one might say it resembles a beauty contest.
But is there only recodification a remarkable phenomenon in itself or also a reorientation? In 2009, it will be twenty years since the Berlin wall was torn down, and, of course,
east of Germany too, legislators were adapting to some kind of market economy system
and legislation. But even in the West, many things have since changed; German and European company and capital market law underwent considerable modifications. After two
decades, are new and softer reorientations needed or to be expected? Why the Wind
Changed: Intellectual Leadership in Western Law, was the title of a paper by Ugo Mattei
published in 1994 (American Journal of International Law 82 (1994) 195-218), and Europeanization of laws has sometimes been regarded as simultaneously being Americanization. There is some truth in this analysis. But on the recodification front, the US currently
does not appear to have very much on offer, arguably with the exception of Article 9 of the
Uniform Commercial Code on security rights, which has impressed many people and
which some American salesmen are trying to rest of the world to take an interest in. So the
10
phenomenon of recodification and perhaps also the striving for more European harmonization and a Common Frame of Reference seem to strengthen the European position. And
many will argue that the American glamour of the second half of the 20th century has lost
at least some of its allure in the early 21st century. The financial market crisis further
deglorifies American economic and (de)regulatory approaches, though the US certainly
holds an influential and strong position in areas such as competition law and legal education. So is the wind changing again? Will the legal rules of a social market economy (and
Rhenanian capitalism) exert more force of attraction and influence? Or will there be new
rising legal stars? If, as many think, a pluricentral world is about to emerge, then perhaps
also the legal world will not be monocentral. This should make Comparative Law even
more interesting, important and useful. The American Journal of International Law will
continue to offer a forum for worldwide legal discussion and to build bridges.
This Issue
The current issue contains five contributions. The first of these is a discussion by Enabulele
and Imoedemhe of the challenges regarding the unified application of international law in
the municipal realm. The author of the second paper, Shael Herman, completes his AJIL
trilogy on the Louisiana Code of Practice (1825) by analysing its uses of analogia iuris. The
third contribution is that of Antonios Emmanuel Platsas, who comments on the functional
and the dysfunctional in the comparative method of law. Garib Allahverdiyev informs
about Azerbaijan. Ramazan Uslu has touched the other face of the relations between Azerbaijan and Unated States. The fourth author, Branka Reetar, examines the link between
sociology and family law with regard to matrimonial property in Europe. Finally, Julia
Sloth-Nielsen takes a look at the interaction and development of childrens rights, childrens law and economics in Southern and Eastern African law reform processes.
11
American Journal of International Law: 2016.

Impact Factor: 1.056, Vol.111, No.1 (January-February):,
DOI: 10.989765/2016.5.9.89
Unification of the Application of International Law in the

Municipal Realm: A Challenge for Contemporary International Law
A.O. Enabulele and C.O. Imoedemhe
Readers are reminded that this work is protected by copyright. While they are free to use
the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in
any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.
I.
Introduction
In the early stages of the formation of international law,1 international law was known as
the law of nations and defined as such; the law applied strictly between nations in terms of
its drafting, scope and the procedural capacity to litigate. In that period, international law
confined itself exclusively to the international realm; it interacted neither with municipal
law nor municipal subjects; consequently, a conflict between international law and municipal law was an unlikely event.
The last century witnessed several events which changed the complexion of the law of nations and caused it to break away from its traditional frontiers. Such events as World War I
and the consequential emergence of the League of Nations in 1919; the atrocities of World
War II and the succession of the League of Nations by the United Nations; the end of colonialism and the consequential multiplicity of independent states; the increasing need for
the protection of human rights and the environment through international law; the emergence of supranational organisations (such as the European Union) and of international
A. O. Enabulele, LLM, BL and C.O. Imoedemhe LLM, BL are lecturers with the Department of Jurisprudence and International
We adopt the classification provided by Malanczuk, who divided the development of international law into:
(a) pre-classical period (early origin from antiquity to 1648);
(b) the classical period (1648-1918); and
(c) the modern system (1918 to present). PETER MALANCZUK, AKENHURSTS MODERN INTERNATIONAL LAW. P.9 (7 th Revised ed. 1997).
1
12
economic law have made the application of international law in the municipal realm and to
municipal subjects a sine qua non for an efficacious international law regime. Buttressing
this point, John C. Yoo observed:2
Relationship and problems which were once domestic, such as economics and environment have become international in scope: events abroad affect domestic
markets and institutions in a more profound manner than in the past. Efforts to
regulate domestic problems need to address international affairs in order to be
comprehensive and effective. Correspondingly, policy solutions have come to rely
upon new types of international agreements that include multiple parties, that create independence international organisations, and that pierce the veil of the nationstate and seek to regulate individual private conduct. While perhaps necessary to
meet international goals, these novel arrangements and institutions create difficulties because they intrude into what was once controlled by the domestic political
and legal system.
It is now often the case, as observed by Abram and Antonio Chayes, that while [s]uch treaties are formally among states, and the obligations are cast as state obligations [t]he real
object of the treaty is not to affect state behaviour but to regulate the activities of individuals and private entities.3 The venture of international law into matters of municipal
concern has created continuous tension between both systems of law. Notwithstanding the
time-honoured principle of international law that a state may not cite the existence or absence of national law to justify a failure to fulfil its international law obligation,4 occasions
are rife where States have failed to fulfil their international law obligations due to impediments created by municipal law. A defaulting State may well be liable on the international
realm, but because municipal law is the product of the exercise of sovereign powers by
States, it cannot be abrogated by international law except insofar as the State by exercising
its sovereign powers bestows on international law the position of superior law. This view is
also shared by Antonio Cassese, when he said:5
Since international law cannot stand on its own feet without its crutches, that is,
municipal law, and since national implementation of international [law] rules is
of crucial importance, one would expect there to be some form of international
regulation of the matter or at least a certain uniformity in the way which domestic
legal systems implement international law. The reality is quite different, however.
International law merely provides that states cannot invoke the legal procedures
of their municipal system as a justification for not complying with international
John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding 99 Colum. L. Rev.
1956, 1968 (1999). (hereinafter, Yoo, Globalism).
3 Abram Chayes & Antonio Chayes, The New Sovereignty: Compliance With International Regulatory Agreements 14 (1995) cited
in Yoo, Globalism at 1958.
4 Section 27 Vienna Convention on the Law of Treaties 1969. Also the Free Zones Case (1932) PCIJ, Ser. A/B No. 46, p.167, the Case
of the Polish Nationals in Danzig (1931), PCIJ, Ser. A/B No.44 p. 24.
5 ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDE WORLD, 15 (1986).
2
13
rules. There it stops, thus leaving each country freedom in the fulfillment of its
international duties. A survey of national systems shows a complete lack of uniformity ... As a consequence each state decides on its own, how to make international law binding ... and what status and rank in the hierarchy of municipal
sources of law assign to it.
The aim of this work is to highlight the different approaches of States in the implementation of international law in their municipal realm; we will rely on the practices of some
States and relate these to the complexities created by the complete lack of uniformity. It
will be argued that for international law to fully realize its regulatory functions in the affairs of States, humans and the environment, there must be consistency and hence predictability in the approach of States. In order to have a holistic view of the theme, we will
commence this study by a brief excursion into the concept of sovereignty and the role it
plays in the municipal normative order.
II.
Sovereignty and International Law
The key to understanding the place of international law in national affairs is sovereignty.
The term sovereignty has been as variously defined6 as it has been criticized.7 In the words
of Lassa Oppenheim,8
There exists perhaps no conception the meaning of which is more controversial
than that of sovereignty. It is an indisputable fact that this conception, from the
moment when it was introduced into political science until the present day, has
never had a meaning which was universally agreed upon.
Sovereignty connotes the power of the State over both its internal and external affairs. The
doctrine of sovereignty could be likened to a double-edged sword: there are the internal
and the external edges. The internal aspect of sovereignty entails the power of a sovereign to exercise final and absolute authority within a given (its) territory. The external aspect of sovereignty entails the independence and non-subjection of the sovereign State to
any other external authority or power in the conduct of both its domestic and international
affairs. It is this aspect of sovereignty that puts States on a par equality9 in their rela-
See W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law 84:4 AJIL 866 (1990) (affirming
that sovereignty has many meanings depending on the context and the objective of those using the word).
7 LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES, 9-10 (1995), cited in Benedict Kingsbury, Sovereignty and Inequality, (online) http://www.ejil.org/journal/Vol.9/No4/art1.html#p10_45 (arguing that: Sovereignty, strictly, is the locus of
ultimate legitimate authority in a political society, once the Prince or the Crown, later parliament or the people. It is an internal
concept and does not have, need not have, any implications for relations between one state and another ... For international relations, surely for international law, it is a term largely unnecessary and better avoided.).
8 LASSA OPPENHEIM, INTERNATIONAL LAW 66 (Sir Arnold D. McNair ed., 4 th ed. 1928).
9 See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 287 (4 th ed. 1990) (noting that the importance of sovereignty stems from its relationship to the equality of states which represents the basic constitutional doctrine of the law of nations). Sovereignty is the basis of Article 2(7) of the United Nations Charter; the essence of which is to give States equal rights to
6
14
tionship with one another.10 It is a cardinal requirement11 for international legal personality of States. However, external sovereignty is a derivative of internal sovereignty; without
internal sovereignty and effectiveness, there can be no external sovereignty. It is in this realisation that Jean Bodin described sovereignty as [t]he most high, absolute and perpetual
power over the citizens and subjects in the commonwealth.12
Sovereignty being the bundle of the rights of the State to act within and without, it is the
power of the State to affect people, properties and events within its territory as well as the
capacity to enter into legal relations with other States. It is therefore the attribute that the
State must possess to be able to enter into international legal relations and transform them
into national obligations. The existence of international law and its connection with national life are the very products of sovereignty.
The misunderstanding that has crept into the relationship between municipal law and international law owes largely to the erroneous view that globalization has obliterated the
traditional absolute right of independent states to exercise supremacy in their internal affairs. The ultimate aim of this argument is to subjugate the national legal order to the international legal order globalization.13 No doubt globalization may seem, in some areas,
to have blurred the clear-cut differences between municipal law and international law, but
it has not obliterated them. In effect, whatever incursion globalization has made into municipal realm is brought about by the strength of municipal law, through the exercise of
sovereignty. It is for this reason perhaps that Benedict Kingsbury rationalised the situation
thus:14
Globalization and democratization are placing state sovereignty under strain, as
international rules and institutions appear to become more intrusive, transnational civil society more active, and unitary state control less pronounced. State
sovereignty as a normative concept is increasingly challenged, especially by a
functional view in which the state loses its normative priority and competes with
supranational, private, and local actors in the optimal allocation of regulatory authority. But discarding sovereignty in favour of a functional approach will intensify inequality, weakening restraints on coercive intervention, diminishing critical
roles of the state as a locus of identity and an autonomous zone of politics, and
redividing the world into zones. The traditional normative concept of sovereignty
manage their internal affairs free from outside interference and to prevent powerful States from undue intervention in the affairs
of weaker States.
10 STEPHEN D. KRASNER, SOVEREIGNTY, ORGANIZED HYPOCRISY (1999), quoted in John H. Jackson, Sovereignty-Modern: A
New Approach to an Outdated Concept 97AJIL 782, 786 (2003). (Krasner identified four essentials of sovereignty viz: domestic
sovereignty, interdependence sovereignty, international legal sovereignty and Westphalia Sovereignty).
11 See MICHAEL ROSS FOWLER & JULIE MARIE BUNCK, LAW POWER AND THE SOVEREIGN STATE 11 (1995) (to them, sovereignty of states is of cardinal importance to international relations).
12 JEAN BODIN, THE SIX BOOKS OF A COMMONWEALTH 84 (Kenneth D. MacRae ed., Richard Knolles trans., 1962).
13 See John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept 97AJIL 782 (2003).
14 Supra note 7 at p. 10.
15
is strained and flawed, but in the absence of better means to manage inequality it
remains preferable to any of the alternatives on offer.
Globalisation is the magic wand that holds together the worlds growing economic system.15 It is the interconnection between the economic, the political, cultural, scientific,
technological and ideological fields of the world.16 There is a gradual but steady change in
the locus of law-making in the international legal systems orchestrated by the interaction
between legal systems and social change. Thus globalization has impacted international
law transforming it from a static to a dynamic and pragmatic system leading to the recognition of the evolving status of the individual and other non-state actors at the international plane. Whilst it may be correct to assert that State sovereignty is diminishing with
the deepening of capitalism and democracy the world over, the liberalization of transboundary trade, and humanitarian intervention as a basis for intervening in gross abuse of
human rights, we must also admit that these are only made possible by the mechanism of
municipal law.
No rule of international law takes domestic effect on its own force; the State must either
have consented to the efficacy of that particular rule within its municipality17 or have delegated, through an enabling treaty, part of its sovereign right in certain areas to an international organisation.18 The treaty of Rome and the European Communities Act (UK) 1972,
both of which provide the footage for the European Union Parliament to make rules which
are domestically effective in the United Kingdom, are obvious examples. It must for all
purposes be remembered, as in the case of the EU and WTO, that the vertical effects of international law are brought about by the submission of the State (through the exercise of
sovereign will) to international law and the adjustment of municipal law accordingly. Support for this otherwise notorious view could be garnered from the view of the Supreme
Court of the Czech Republic, when it was called upon to apply EU directives in the municipal realm of Czech Republic. Refusing the invitation, the court reasoned:19
...the validity of the agreement made between the parties on August 31, 1993 must
be decided according to the then valid law, as both lower courts did. In contrast,
The worlds economy has become co interconnected that internal crises be it political, economic, military or terrorism may
have impact even upon the most remote geographically connected States and create concern for the international community as a
whole.
16 V. Golland-Debbas, Law Making in a Globalised World being a paper presented at the Euromediterranean Course of International Law Castallon, Spain 2005.
17 This position is expressly recognized in some international instruments. Hence it is sometimes provided as did article 1 of the
African Charter on Human and Peoples Right 1982 (took effect on March 17, 1983) that State Parties should endeavour to adopt
the needed legislative instruments to bring its provisions to bear in their municipal realm.
18 See Application of the Obligation to Arbitrate under section 21 of the United Nations Headquarters Agreement of 26 June 1947,
1988 ICJ REP. 12 (here, the court accepted that, implied in a States membership of international organisation, is a clear limitation
on its sovereignty). This is not disputed, provided we do not loss sight of the fact that membership of international organisations
are voluntary; it is therefore, that initial voluntary surrender of the State to the rules of an international organisation, that underpins her sovereignty.
19 Decision of the Czech Supreme Court of December 12, 2000, 25 Cdo 314/99. Cited in Zdenik Kubn, the Application of European
Law in the New Member States: Several (Early) Predictions 6:3 German LAW Journal (March 2005). Available online at
www.germanlawjournal.com/article.php?id=577.
15
16
laws and directives valid in the countries of the European Community are not applicable, as the Czech Republic was not (and still is not) a member of the community, and that is why the Czech Republic is not bound by these laws...
This does not in our opinion derogate from the absolute sovereignty a State has to control
its internal affairs given that a State can denounce a treaty and abrogate its effect in its
municipality. Besides, as ever before, international law feeds on the favourable exercise of
sovereign powers by States. The strength of international law in certain areas and its
weaknesses in others are reflections of how much States are willing to direct their sovereign power in support or denunciation of the particular rule. The inability of the International Criminal Court to effectively come into being exemplifies the inherent power of the
sovereign State to determine, as ever before, when and to what external authority it would
submit its country or citizens.20 Certainly,21
...the theory of sovereignty provides the means by which people can express, and be
deemed to have expressed consent to the application of international legal norms
and to international institutional competences. Consent, whether express or tacit,
plays a crucial role in legitimating international legal rules and institutional activities...
The confusion we grapple with in our contemporary world is brought about by those whose
belief that the concept of sovereignty is an outdated concept which has been irredeemably
washed away by globalization.22 But this confusion can be averted if we admit the fact that
municipal law rather than international law forms the basis of the interaction between
municipal law and international law; hence globalization could not have been without the
support of municipal law. Support for this view could be garnered from the decision of the
Supreme Court of the United States in Foster v. Neilson,23 where the court declared:24
A treaty is in its nature a contract between two nations, not a legislative act. It does
not generally effect, of itself, the object to be accomplished, especially so far as its
operation is infra-territorial; but is carried into execution by the sovereign power of
the respective parties to the instrument.
The Rome Statute of the ICC came into force in July 2002 and about 105 countries have ratified it while 41 countries have
signed but yet to ratify. The government of Sudan has refused to surrender the Janjaweed Militia suspects to the ICC prosecutor;
United States and Israel initially signed the Rome Statute but subsequently withdrew their signatures; China, Russia, Iran, North
Korea, India, Yeman, Iraq have refused to submit to the jurisdiction of the ICC.
21 Supra note 7 at 25.
22 No doubt, the Westphalia or classical idea of sovereignty (which held sway between the 16 th century and early 20th century) has
changed through interdependence and communication, but the basic assumption of the time territorial sovereignty, the formal
equality of states, non-intervention in the domestic affairs of other recognised States and States consent as the basis of international legal obligations still persists.
23 27 U.S. (2 Pet.) 253 (1829).
24 Ibid, at 314.
20
17
Accordingly, any inquiry concerning the form and shape of international law in the municipal sphere must look to municipal law for guidance.
III.
Municipal Implementation of Treaties
In exercising its sovereign powers each State regulates the mode and manner in which international law is applied within its municipality, and as stated earlier, there is no straightjacket or uniform approach each State must be treated on the basis of its municipal law
provision.25 The lack of uniformity notwithstanding, it is possible to identify three ways by
which states implement international law within their municipality. They are as follows:
i. when international law is self-executing;
ii. when international law is non-self-executing;
iii. the American model.
i.
When International Law is Self-Executing
International law is said to be self-executing in the municipal realm where no local legislation is required for implementation.26 In Trans World Airlines Inc. v. Franklin Mint
Corp,27 the United States Supreme Court defined a self-executing treaty as one for which
no domestic legislation is required to give the force of law in the United States [the domestic realm]. Article 55 of the Constitution of France, 1958; Article 28 of the Greece Constitution, 1975; Articles 93 and 94 of the Netherlands Constitution 1983 and Article 8 of the
Portuguese Constitution of 1976 permit municipal implementation of treaties without prior
legislation. In all of these countries, international law is self-executing; the general rule in
these countries is that a treaty assumes the force of municipal law the moment it is entered
into.
At this point, it suffices to briefly state that the role of the European community in transforming its member states into a monist haven demonstrates the most uniform example of
self-execution of international law in the municipal realm. As early as 1974, the erudite
Lord Denning in H.P. Bulmer Ltd v. Bollinger S.A,28 likened the Europeans Community
Law to an incoming tide flowing up the estuaries and up the rivers [of the British ComThis is why the postulations of the monist and dualist schools of thought are hardly helpful in contemporary international law
the monists hold the view that there is one system of law of which international law is an element and to that extent that municipal law must conform to international law for pain of nullity; the crust of this view is that international law is self-executing in the
municipal realm of states. The dualists on the other hand holds the view that international law and municipal law constitute a
dual system of law regulating separate entities and that each exists in its own realm. See Louis Henkin, Treaties in a Constitutional Democracy 10 MICH.J. INTL L 406, 415. If one takes either view as the standard, one will invariably fall into the error of
either relegating municipal law (monists) or excluding the direct application of international law in the municipal realm (dualist).
It is not the doctrines that define the relationship between municipal and international law but the municipal laws of states that
determine whether states operate the dualist or monist model or a hybrid of both.
26 See Jordan Paust, Self Executing Treaties 82 AJIL 760, 1988.
27 466 U.S 243, 252 (1984).
28 (1974) 2 ALL E.R 1226, 1231.
25
18
mon Law]. A few years later in Shield v. E Coomes (Holdings Ltd),29 Lord Denning was
amazed at how [t]he flowing tides of community laws is coming fast. It has not stopped at
the high water marks; it has broken the dykes and the banks. It has submerged the surrounding land so much so that we have to learn to be amphibious if we wish to keep our
heads above water.
EU directives are directly applicable in all countries which have acceded to the treaty establishing the community. But care must be taken not to confuse EU directives with general international law. In principle, except in such EU countries where international law is
generally self-executing, there could be two different approaches to the implementation of
international law. That is, while EU directives will, by virtue of the countries membership
of the community, be self-executing, international law, generally, will require municipal
implementation. The United Kingdom aptly buttresses this point. While by virtue of its accession to the treaty establishing the European Community and European Communities
Act 1972, EU directives are directly applicable in the United Kingdom, but as to general
international law, the applicable principle, as stated by the Privy Council in Higgs & Anor.
v. Minister of National Security & Ors,30 is that:
In the law of England and the Bahamas, the right to enter into treaties was one of the
surviving prerogative powers of the crown. Treaties formed no part of domestic law
unless enacted by the legislature. Domestic courts had no jurisdiction to construe or
apply a treaty, nor could incorporated treaties change the law of the land. They had
no effect upon citizens rights and duties in common law or statute law...
ii.
When International Law is Non-Self-Executing
International law is non-self-executing when it cannot, upon being entered into by the contracting States, posses the force of law in the municipal realm of the state parties without
prior legislative action.31 This approach can be noticed in Article 29-6 of the 1937 Constitution of Ireland; section 95 of the Finish Constitution of 1999; Article 167(2) and (3) of the
Belgium Constitution of 1970, Articles 94 and 95 of the Constitution of Spain, Articles 149151 of the Constitution of Burkina Faso 1991, Articles 43-45 of the Constitution of the Republic of Cameroon 1972 and Section 12 of the Constitution of the Federal Republic of Nigeria 1999.
In these countries, treaties cannot have the force of law without implementation by municipal law; the implication of this is that for every treaty intended to have the force of municipal law, the country must adopt either of the following legislative processes:
(1979) 1 ALL E.R 456, 462.

The Times of December 23, 1999, cited with approval by the Supreme Court of Nigeria in Abacha v. Fawehinmi [2000] 6
N.W.L.R (pt. 660) 228, 288-289, 357.
31 Carlos Manuel Vazquez. The Four Doctrines of Self Executing Treaties, 89 AJIL 695 at 695.
29
30
19
(a)
enact legislation giving force and life to the application of a treaty;
(b)
incorporate the provisions of a treaty into domestic policy and enact this policy as
municipal law.
Until this is done, no municipal court can take cognizance of the treaty.
iii.
The American Model
The American model is a hybrid of the first two; it is so because a treaty may either be selfexecuting or non-self-executing in the municipal realm of the United States. Article VI of
the United States Constitution simply declares that Treaties and Statutes shall be the Supreme Law of the Land. The constitution does not prescribe the manner by which treaties
become effective in the realm; this lacuna leaves the determination of when a treaty becomes a law of the land to the language of the treaty and the vagaries of interpretation,
which in turn has led to two very strong and divergent views amongst judges32 and other
jurists33 on the intended meaning of Article VI. Article VI appears to indicate that an Act of
Congress and an applicable treaty are of equal status in United States law and that in the
case of inconsistency, the more recent of the two prevails.34 Accordingly, a treaty could supersede a prior Act of Congress and vice versa.35 In Murray v. Schooner Charming Betsy36
Marshall C.J, declared An Act of Congress ought never to be construed to violate the law
of nations if any other possible construction remains. This pattern of reasoning was followed by the Supreme Court in Foster v. Neilson,37 where it was held:38
The inconsistent approach of the courts in this regards lends credence to this view. On the application of article VI, two lines of
cases are evident. The first line of cases are those which upholds the self-executing view; examples of these are In re Tiburcio
Parrott, C.C., 1 F. 481 (1880) (striking down the California constitutional ban on the rights of Chinese workers as a violation of the
Burlingame Treaty); In re Ah Chong, 6 Sawyer 451 (1880) (holding that state law prohibiting aliens from fishing in public waters
void due to contravention with Burlingame treaty); Olympic Airways v. Husain, 124 S. CT. 1221 (2004) (here, the court held that
the Warsaw Convention 1929 was binding law in the United States, the claim based thereon was allowed). The second line of
cases the opposite view is exemplified by Foster & Elam v. Neilson, 27 U.S 253 (1829) (declaring that the language of the Spanish grant over a piece of land could not be enforced until congress confirms same by legislation); the United States v. Postal, 589 F.
2d 862, 877 (5th Cir. 1979) (here the Fifth Circuit refused to apply the Law of the Sea Convention 1958 against the conviction of
Postal, who was arrested on the high sea on a vessel flying the flag of Grand Cayman Island but yet Postal was tried and convicted
in the United States); United States v. Alvarez-Machine 54 U.S. 655 (1992) (affirming the adduction of a suspect residing in Mexico in contravention of a 1978 extradition treaty with Mexico).
33 The weight of academic views tilts towards self-execution. While scholars like Professor Carlos Vazquez and Jordan J. Paust
argue that the provision makes treaties self-executing, Professor John Yoo belongs to the opposite camp. See Carlos Vazquez,
treaty based rights and remedies of individuals, 99 Colum. L.Rev 1082, 1084 (1992) (arguing that the text and history of the constitution demonstrate that courts may directly enforce treaty provisions in properly brought suits by individuals); Jordan J. Paust,
self executing treaties, 82 Am. J. Intl Law 760,760 (1988) (arguing that non self- execution is a judicial invention at odds with
the constitution and the views of the framers). For the contrary view, see Yoo, Globalism, at 1961(arguing that the original understanding does not compel a reading of the supremacy clause that immediately makes treaties law within the united states, but
instead allows the branches of government to delay execution of a treaty until congress as a whole can determine how treaty
obligations are to be implemented). Also see the vehement critique of Yoo, Globalism by Martin S. Flaherty, History Right?: History Scholarship, Original Understanding, and Treaties as Supreme Law of the Land 99 Colum. L.Rev 2095 (1992) (Flaherty
challenged Yoos discussion on grounds of historical inaccuracy).
34 The Restatement (Third) of the Foreign Relations of the United States, . 115 (1987).
35 The United States v. The Schooner Exchange Peggy, 1 Cranch 103, 110.
36 6 U.S (2 Cranch) 64, 118 (1804).
37 Supra note 27.
38 Ibid, at 314.
32
20
...our constitution declares a treaty to be the law of the land. It is, consequently, to
be regarded in courts of justice as equivalent to an Act of the Legislature, whenever
it operates of itself without the aid of any legislative provision.
Although the above stated rule is highly trumpeted, it has been stated, and rightly too, that
in practice, except in isolated cases,39 the last-in-time rule operates in one direction; later
statutes are often superior to treaties.40
To execute a treaty in the United States, the court draws a distinction, on the basis of the
wording of the treaty, between a self-executing treaty and a non-self-executing treaty. In
the Restatement (Third) of the Foreign Relations Law of the United States 111 (4)
(1987),41 it was stated that treaties are self-executing so long as they are not non-selfexecuting and that treaties are non-self-executing:
(a)
if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation;
(b)
if the senate in giving consent to the treaty, or congress by resolution requires implementing legislation; or
(c)
if implementing legislation is constitutionally required.
Thus, in the American model the courts must of necessity examine each treaty on its merit
and determine whether it is self-executing or not. This situation gives national courts the
jurisdiction to examine the language of each treaty on its merit with a view to its applicability.42 In U.S v. the Schooner Peggy,43 Chief Justice Marshall of the U.S. Supreme Court
held that when a treaty affects the rights of parties litigating in court, the treaty is much to
be regarded as an Act of Congress.
The implementation of international law in the U.S. seems beset by the subjective disposition of the judge and the circumstances under which international law is sought to be implemented. Hence it has been strongly asserted that It would mean that the United States
regards international law commitments as having the force of law only as it wishes to
honor them.44
Such as Cook v. United States 288 U.S 102 (1933), where the Supreme Court held that a 1924 Statute with Great Britain superseded a 1922 Tariff Statute and U.S v. Ray, 423 F. 2d 16, 21 (5th cir. 1970), which held that prior Outer Continental Shelf Lands Act
is superseded by the Geneva convention on the continental shelf.
40 Breard v. Greene, 523 U.S at 374, where the U.S Supreme Court refused to issue a stay of execution of a death penalty imposed
on a Paraguay national by a virginal court in violation of the Vienna Convention on Consular Relations on the ground that the
treaty rights under the Vienna Convention were subject to the later in time Anti-Terrorism and Effective Death Penalty Act 1996
against the directive of the ICJ that the U.S should take measures to stay the execution. For a full discussion of the case, see Curtis
A. Bradley, Breard, Our Dualist Constitution and the International Conception 51 Stan. L. Rev. 529, 530-31 (1999).
41 Also see Stephen P. Vledeck, Non Self-Executing Treaty and the Suspensions Clause after St. Cyr. 113 Yale L.J 2008 (2007).
42 Indeed a treaty, by its term, may stipulate that implementing legislation will be required before the treaty has the force of domestic law. See Foster v. Neilson, 27 U.S (2 Pet.) 253 (1829).
43 Supra.
44 Peter Western, The Place of Foreign Treaties in the Courts of the United States: A Reply to Louis Henkin, 101 Harv. L. Rev.
511, 513.
39
21
One cannot therefore assert with mathematical precision, with respect to any particular
treaty, that the treaty will or will not be self-executing in the United States, until a competent court certifies the self-executing or non-self-executing nature of the treaty.
IV.
Consequences
The lack of uniformity in the approaches of states has consequences, not only for the actualisation of the drive of contemporary international law, but also for the parties inter se. It
creates imbalances in the application of international law in the municipal realm of contracting parties. If, for instance, Nigeria, the United States and France enter into a treaty
which requires municipal implementation, that treaty will immediately come into effect in
France; in Nigeria, it will not be effective unless it is implemented by the legislature; in the
United States, it may or may not take effect depending on whether the treaty is seen to be
self-executing or non-self-executing. If it is self-executing, it will take effect without municipal implementation; not so, if it is non-self-executing.45
The legitimate expectations of officials in France, and of citizens of Nigeria and the US (if
the treaty creates private rights) that the treaty will be applied in Nigeria and the U.S, will
hang on the indeterminacy of international law in these two realms. This situation frustrates the treaty as much as it creates implications for the parties under international law
given that Nigeria and the U.S cannot rely on the deficiencies in their municipal laws to
justify their inability to bring the treaty to bear in their respective municipal realms.
The situation is bound to be more complex when the treaty involves a larger number of
States. In that case, each member state would require assurances of the implementation of
the treaty by every other before applying the treaty. One of the reasons advanced by the
U.S court for refusing to apply the Law of the Sea Convention in United States v.
Postal46was that the enforcement of the multilateral treaty in other countries was unclear.
The cue other states might take from this view could easily be to the detriment of the convention.
V.
Conclusion
The situation envisaged above creates a serious challenge for contemporary international
law in that the globalization of the world and of almost everything that is of interest to
mankind everything that is crucial to survival in our interdependent world underscores
For example, the United States became a party to the Vienna Convention on Consular Relations over forty years ago, but has
refused to implement article 36 of the Convention; article 36 protects the rights of the citizens to consult with a Consular Officer,
if arrested in a foreign country. While the United States had failed to implement the article, the State Department complains when
other countries fail to apply article 36 to U.S citizens. See U.S. v. Lombera-Carmorlinga 206 F.3d 882 (9th Cir 2000).
46 Supra note 32 at 878.
45
22
the importance of international law and the need to unify the laws of all countries to create
a common ground for the application of international law in the municipal realm, as
against the prevailing disorganised situation.
Perhaps, it would be much easier to argue in favour of the monists approach with the ultimate aim of creating a unitary system where international law will be self-implementing
and superior to national laws at the municipal realm. This may well do away with the prevailing chaotic approaches of states in the implementation of international law in the municipal realm, but this will lead to yet another problem how can weaker States be protected from external control by States which wield powerful influence on the international
plane. In theory, States may be equal in the international arena, yet the practical imbalances are very palpable. The United Nations was formed on the basis of equality yet the
five permanent members of the Security Council wield their veto to have their way and to
protect their interests, sometimes to the detriment of weaker states. This rules out the unitary approach, at least from the point of view of States which require strict internal control
for national development and economic growth.
Such imbalances coupled with the increasing ethnicity and peculiarities of States, and the
diversity of interests, which is sometimes reflected in treaties, make the task of attaining a
unification of international law in our multicultural and heterogeneous world politically as
well as legally an onerous one.
To our minds, the solution lies in legal pluralism whilst ensuring that some international
mechanisms are in place to ensure compliance in the municipal sphere with international
obligations. One way to achieve this is for each treaty to oblige all State parties to adjust
their municipal law with a view to creating the legal and political space for the implementation of the treaty as a prerequisite for the treaty to come into force. Alternatively, a treaty
could contain a reservation that would make the treaty effective only between the States in
whose municipal realms the treaty has been implemented. This device will preserve both
the prestige of the treaty and the sovereignty of the contracting states.
Cite as: A.O. Enabulele and C.O. Imoedemhe, Unification of the Application of International Law in the Municipal Realm: A Challenge for Contemporary International Law, vol.
12.3 AMERICAN JOURNAL OF INTERNATIONAL LAW, (December 2008),
<http://www.ajil.org/123/art123-1.pdf>.
23

DOI: 10.989765/2016.5.8.91
The Uses of Analogia Iuris in the Louisiana Code of

Practice (1825)*
Shael Herman**
I.
Introduction
As jurists in the only American state with a Romanesque civil code, Louisiana lawyers have
contended for over two centuries with an intellectual loneliness verging occasionally on
solipsism.47 While lawyers from the other forty nine states feast on a bountiful harvest of
scholarly works published by national publishing houses, we dine mainly on locally grown
output about the civil law. By cutting us off from many of the intellectual wellsprings of our
private law, widespread ignorance of the mother languages of the civil law (i.e., Latin, Italian, French, Spanish, German, and Dutch,) has deepened our isolation. Louisiana lawyers
daily reading of our codes has suffered from insufficient understanding of statutory interThis article is dedicated to Warren A Goldstein as a token of our friendship of nearly six decades.
** John Minor Wisdom Professor Emeritus, Tulane Law School; Visiting Professor, University of Paris II (Pantheon Assas). This
paper completes an EJCL trilogy on the Louisiana Code of Practice (1825) by Shael Herman. It first appeared in 23 Tulane European and Civil Law Forum 51 (2008). The first two instalments appeared in EJCL issue 12.1
(http://www.ejcl.org/121/papers121.html).
47 Owing partly to the uniqueness of our mixed legal system within the United States, our loneliness is temporarily relieved by
exchanges with other mixed and civil law systems. On the virtues and drawbacks of Louisianas unique legal system, see generally
Shael Herman, Louisiana: One Off Among Fifty States, in The Influence of the French Civil Code on the Common Law and Beyond
115 (D. Fairgreave ed., 2007); Shael Herman, Epistle to Catalonia: Romance and Rentabilidad in an Anglophone Mixed Jurisdiction, in Regional Private Laws and Codification in Europe 221 (H MacQueen, A Vaquer, & S E. Espiau eds, 2003) translated in
Epistola a Cataluna: Romance y Rentabilidad en un Ordenamiento Mixto Anglofono, La Notaria (Brcelona) Tomo 1, Numeros 1112 at 41 (2001). One tacks against the wind if he tries to explain to American lawyers the French and Spanish influences upon our
law, for the American polity seems to suffer from an allergy, indeeda phobia, toward international law and multinational organizations. I know of no other enlightened legal system in which justices of the highest national court, seemingly in the grip of nativist urges, inveigh against fellow justices for occasionally informing their opinions with references to foreign law. These critics
seem oblivious to the fact that American law, predictably for a relatively young nation of settlers from distant lands, is to a considerable extent an alloy of foreign legal influences. Their contempt for fellow judges who favor reference to foreign law is reason
enough to wonder where American law is now going. See generally David M OBrien, More Smoke Than Fire: The Rehnquist
Courts Use of Comparative Judicial Opinions and Law in the Construction of Constitutional Rights, 22 J Law & Politics 83 (2006).
24
pretive methods that have been the stock in trade of civilians and canon lawyers. The third
in a series of papers on Louisianas early codes, this study expands our knowledge of statutory interpretation by reflecting upon a heuristic device that the early Louisiana law drafters, Edward Livingston, Louis Moreau-Lislet and Pierre Derbigny, built into the Louisiana
Civil Code and the Code of Practice of 1825. I argue here that the three drafters yoked these
codes together by means of both a common terminology and a methodological commitment to purposive interpretation animated by a venerable technique, analogia iuris.
In an earlier essay,48 I argued that the three law commissioners sought to confer equal rank
upon the two codes. Indeed, an early Louisiana enactment had even assigned the Code of
Practice priority over the Civil Code in case of conflict between the two codes.49 The priority
rule might seem a counterintuitive inversion to a civil lawyer, for he would locate the Civil
Code at the apex of a hierarchy of legal sources, and a procedural code several rungs below
the Civil Code. The priority rule may be understood, however, against the backdrop of Louisianas unusual legal evolution. During the eighteenth century, Louisiana was a civil law
stronghold under French and then Spanish rule. Early in the nineteenth century, the Louisiana Purchase caused the territorys legal shift to a mixed jurisdiction in an early stage of
gestation. Thanks to political pressures from President Thomas Jefferson; his hand picked
governor, W.C.C. Claiborne, and his judicial appointees from other states, a burgeoning
American common law posed a growing challenge to the civil law tradition. If, in 1803, the
Louisiana Purchase had not implicitly imposed American legal norms on Louisiana inhabitants, then a declaration by Louisiana lawmakers indicated that the norms were generally
received by 1806. In that year, a Louisiana legislative manifesto acknowledged the preeminence of national laws. Yet it also insisted upon continuation of the territorys civil laws
compatible with national laws.50
To the three law commissioners, the priority rule was emblematic of an enduring dilemma.
On one hand, it consisted of preserving the states civil law in accordance with the consensus of the local populace while, on the other hand, conforming the civil law to common law
norms that animated United States jurisprudence. To manage the dilemma (it has never
been resolved), the drafters satisfied local lawyers by enshrining in the Code of Practice of
1825 a number of civilian institutions. To the probable delight of lawyers arriving from
other states, the drafters also constitutionalized the Code of Practice by incorporating
into it extensive regulation of American constitutional norms such as habeas corpus, the
prerogative writs, jury trials, and an adversarial process.51
The Louisiana Code of Practice (1825): A Civilian Essai Among Anglo American Sources(Part I) The Electronic Journal of Comparative Law Jurist; Part II (hereinafter cited as Essai).
49 In case the [. . .] Code of Practice should contain any provisions contrary or repugnant to those of the Civil Code, the latter shall
be considered as virtually repealed or thereby amended in that respect. La. Acts 1824, Section 10 (April 12th, 1824).
50 Since we have the power to keep our old laws insofar as they do not conflict with the Constitution of the United States and the
special acts passed for our provisional government, no one can deny the advantage to us of remaining under a system to which
we are accustomed and which has nothing contrary to the affection which we owe to our government. Le Telegraphe, June 3rd,
1806, reprinted in 9 THE TERRITORIAL PAPERS OF THE UNITED STATES 643-57 (C. E. Carter ed., 1940).
51 For an account of the integration of these institutions and doctrines into Louisiana civil procedure, see generally Essai, Parts I
and II, supra note 2.
48
25
An exercise in accommodating the rival traditions, constitutionalizing the Code of Practice seemed to have two purposes, one internal to Louisianas legal system and the other
external to it. In terms of external effects, the process rendered the procedural character of
Louisiana law recognizable to lawyers in other states and institutions of the national government. Such recognition required Louisiana courts to conduct trials and give judgments
that formally followed American patterns and could pass constitutional muster although
the disputes in the courts were animated by civilian doctrine. In terms of internal effects, a
process of constitutionalizing the Code of Practice gave newly arriving lawyers signposts in
a topography dominated by unfamiliar civilian norms and concepts. Although the provenance of the Civil Code was almost entirely civilian, that of the Code of Practice derived
from a fair balance of civilian and common law institutions and practices. By providing a
field in which the rival traditions met and accommodated one another, the Code of Practice
offered an unusual window into the legislative processes that yielded the mixed legal system.
II.
The Heuristic Value of Analogical Interpretation
The law commissioners report on their work suggested their intention to link substantive
rights and duties embodied in the Civil Code with enforcement mechanisms in the Code of
Practice: 52
We have thought it our first duty to comprise in the several Codes we deem necessary for stating and defining the rights of individuals in their personal relations to
each other [. . .] preserving and transferring property and rights [Authors note: i.e.,
in a civil code] and for seeking civil redress for any injury offered to either. These
rules will form the civil and commercial codes, and the System of Judicial Procedure which we are directed to furnish for your consideration.
Although the commissioners method could have been spelled out more crisply, their goal
seems clearly to have been to link the two codes together. The links were too numerous and
clear to be chalked up to coincidence. When a substantive rule or concept in the Civil Code
was sounded, then a procedural rule or concept in the Code of Practice would resonate for
local lawyers and prompt them to reflect upon key mechanisms in the latter. Ubi ius (in the
Civil Code) ibi remedium (in the Code of Practice).By yoking the codes together, the drafters displayed remarkable prescience. They seem to have realized that local civilians, even
though deprived of a procedural safety net, might still comfortably navigate the Civil
Codes abstract formulations of rights and duties. But from the time of the Louisiana Purchase, a swelling number of common lawyers likely would have welcomed a procedural
context for unfamiliar substantive rules and concepts translated from Latin, Spanish, and
French sources.
Edward Livingston, et al Preliminary Report of the Code Commissioners (February 13th, 1823), reprinted in 1 LA LEGAL ARCHIVES
lxxxix (1937) (hereinafter cited as Commissioners Report).
52
26
For the Louisiana Civil Code alone, analogia iuris was an indispensable instrument of interpretation. An elegant method whose name betrayed its origins in ancient Greek philosophy and Latin rhetoric,53 analogical interpretation was a main instrument by which Romanists extended their legal texts in both time and space.54 Across Europe, medieval
churchmen, the principal transmitters of a legal culture indebted to both classical learning
and Christian theology, relied upon analogical interpretation to enlarge the scope of legal
rules they had inherited from the Roman jurists. Gradually the churchmen tempered and
harmonized the rules into a ius commune that would displace disparate customary laws
prevailing in the most remote corners of Christendom.
By projecting the rules in time, analogical interpretation also enabled medieval lawyers to
save them from ossifying or collapsing under the pressure of unanticipated historical circumstances. Embraced by the formalistic cole de lexgse, the analogical method permitted French revolutionary jurists during the early 1800s to discover the inner policies and
organic interactions of their civil code rules. In France their juristic method came to be associated with the famous maxim, par le code mais au-del du code.55 As Thomas Aquinas had drawn analogies between the human intellect and divine omniscience, French jurists drew an analogy between the minds of their code drafters and the mind of God. Who
has the place of God on earth? Napoleon rhetorically asked. Answer: The legislator, by
which Napoleon meant himself. In his self aggrandizement, Napoleon followed Justinian,
who had a millennium earlier legitimated his compilation on the basis that its author was
an emperor who was both Christian and Roman.
The most ancient form of analogy seems to have been the statement of geometric ratios or mathematical proportions
(A:B=C:D). For lawyers, analogy is an indispensable tool for identifying continuities in time and space. It lies at the base of the
lawyers quest for symmetry, order, and legislative coherence. Applied to legislative texts, analogia iuris has usually been designated by a subspecies, analogia legis. But here I have used the broader, more familiar term analogia iuris to describe analogical
interpretation because our analysis navigates among constitutions, legislation, judicial decisions, doctrine, and editorial comments. On the roots of the interpretive techniques in Roman law and Greek rhetoric, see Shael Herman, The Equity of the Statute
and Ratio Scripta: Legislative Interpretation Among Legislative Agnostics and True Believers, 69 TUL. L. REV. 535 (1994). (cited
hereinafter as Equity of the Statute); PETER STEIN, REGULAE IURIS 131-132 (1961).
54 On the role of analogy in interpretation of civilian legislation, see Shael Herman, Under My Wings Everything Prospers: Reflections Upon Vernon Palmers The Louisiana Civilian ExperienceCritiques of Codification in a Mixed Jurisdiction, 80 Tulane L Rev
1491, (2006); Shael Herman, The Equity of the Statute, supra note 7, 548-549. During the middle ages, analogical interpretation
was also important for the methods of Jewish and Christian scholars who sought to uncover and harmonize the meanings of the
Bible and authoritative texts. Id. at note 61.
55 R. Saleilles, Prface, in F. GENY, METHODE DINTERPRETATION ET SOURCES EN DROIT PRIVE POSITIF, essai critique xiii (1899) (cited
hereinafter as Gny). The lesson to be drawn from Saleilless aphorism was that the meanings of the French Civil Code were not
frozen at the time of enactment in 1804. In other words, in terms familiar in United States Supreme Court jurisprudence, textual
originalism would have been inappropriate for interpreting either the French civil code or its Louisiana counterpart. On the contrary, Saleilles urged interpreters of the French Civil Code to take into account social and economic evolution occurring since the
time of the codes adoption. On the evolution of interpretive methods in French law, see generally C. Jamin, Saleilles & Lamberts
Old Dream Revisited, 50 AM. J. COMP. L.701 (2002).
53
27
Around 1900, Franois Gny made the analogical method a foundation stone for his celebrated libre recherche scientifique.56 Originating in classical Rome and later taking root in
the Holy Roman Empire, these civilian developments coalesced in Europes legal thought.
They endured in Article 17 of the Louisiana Civil Code of 182557 which enshrined the principle of analogical interpretation.
Laws in pari materiae, or upon the same subject matter, must be construed
with a reference to each other; what is clear in one statute may be called in aid to
explain what is doubtful in another.
If interpretation in pari materiae resulted in legislative ambiguity, then CC (Civil Code)
article 18 instructed the court to inquire into the purpose of the law in question:
The most universal and effectual way of discovering the true meaning of a
law, when its expressions are dubious, is by considering the reason and spirit of it
or the cause which induced the Legislature to enact it.
French doctrine in time embraced the analogical methods embodied in the Louisiana Civil
Code. It could not have been otherwise, for without analogical interpretation, the codes
would not have endured. If the Louisiana Purchase had not occurred, then Louisianas legal evolution might have followed that of France or another French territory. Perhaps the
unique blend of French and Spanish laws, unaffected by the common law, would have
yielded a system unlike any we know today. But these things we shall never know. We do
know that the Purchase and the territorys consequent mixed character challenged the
commissioners to exercise fully their powers of improvisation. They deployed techniques of
analogia iuris beyond the Civil Code, (au- del du Code) into a procedural realm dictated
by the Constitution and American legal norms. The Code of Practice elaborated several
hundred articles that would reinforce cognate Civil Code articles and in turn be reinforced
by them. When analogical interpretation of the two codes sometimes spent itself in simple
reinforcement of the rules, this was nonetheless an estimable advantage for local lawyers
in search of pathways through an unfamiliar legal thicket.58 As early judicial opinions attested, analogical interpretation went beyond reinforcing the rules, enabling regulation in
one code subtly to color cognate regulation in the other.59 To borrow Portaliss famous
phrase, each code made the other more fcond en consquences (fertile in effects) than it
Gny, supra note 13. This work, in a translation by J. Mayda, was published by the Louisiana State Law Institute as Method of
Interpretation and Sources of Private Positive Law (1963).
57 CIVIL CODE OF THE STATE OF LOUISIANA, 1825 (ed. Morgan 1853).
58 For the law commissioners view of the confusing character of territorial law, see generally Commissioners Report Lxxxvlxxxix.
59 For judicial examples of this phenomenon, see Seixas v Citizens Bank, 38 La Ann 424 (financial failure or insolvency explained
in light of CP art 165 and CC art 3027); Soulie v Soulie, 5 La 26, 1832 WL 947 (role of curator of absentee explained in light of
cognate provisions of Code of Practice and Civil Code); Allison v Maroun, 193 La 286, 190 So 408 (interpreting the meaning of
possess in light of CP article 47 and CC art 3454); Jennison v Warmack, 5 La 493, 1833 WL 2645, (analogical reading of CC and
CP); Vance v Lafferanderie, 4 Rob. 340, 1843 WL 1392 (1843) (in accordance with the priority rule, supra note 7, CC article 1987
was substantially modified by CP article 647). Parker v Starkweather, 7 Mart n s 337; 1825 WL 1644 (analogical interpretation of
seizure regulation in both Civil Code and Code of Practice); Hallock v Caruthers, 5 Rob 190; 1843 WL 1522 (interpreting Civil
Code and Code of Practice in pari materia on proper service of interrogatories).
56
28
would have been if read alone.60 Following a scholastic method that beamed the light of the
Old Testament and the New Testament upon one other, each code constituted a catechism
or users guide for the other codes gospel.61
III.
Sounding a Theme in the Civil Code: Obligation with Performance Subject to a Term (CC articles 2043, 2048, and 2052)
Our study illustrates the interdependence of the codes at the level of single words (i.e.,
term), simple phrases (natural obligations), and finally entire titles (judicial remedies). In
the first two examples, the links between the codes are implied; in the last illustration, the
links are explicit. To demonstrate the interdependence of the two codes in a readily understandable context, we first focus upon term, a word understood differently by common
law doctrinal writers and their civilian counterparts. In the language of common law contracts, the word term refers loosely to a clause, a provision, a condition, or a stipulation in
an agreement.62 Civilian doctrine has assigned term a more technical meaning than
common law doctrine. Indispensable for a credit economy dependent upon executory contracts payable in installments, term refers to a period granted an obligor for performance. According to CC article 2043, the time given or limited for the performance of an
obligation is called its term.63 By locating a provision on term in a chapter titled Of the
Different Kinds of Obligations, the drafters made clear that term applied broadly to a
range of obligations, however they might arise. Term might designate a specified period
in almost any document or transaction;64 it could exist by virtue of a statute or a judicial
order.
Fconds en consquence was Portaliss picturesque shorthand for the analogical power of sound code provisions. For
Portaliss preliminary discourse on the French Civil Code, see Alain Levasseur, Code Napoleon or Code Portalis?, 43 TUL. L. REV. 762
(1969).
61 Because indoctrinating an uneducated flock required moral object lessons, this catechistic function played an important role in
interpreting the Old and the New Testaments. According to Christian theologians who sought to establish the parity of the New
Testament with the Old Testament, the latter prophesied events and figures in the former. For example, the Gospels depicted
Jesus (Old Testament: Joshua) as the new Adam. In some instances, figures who shared a proper name performed similar acts
having implications for their salvation. For example, the names Judah and Judas derived from the Hebrew Yehudah. In the Old
Testament Judah sinned by suggesting the sale of Joseph into bondage. In the New Testament, a central example of sinful conduct
concerned Judass acceptance of money to betray Jesus.
62 In recognition of the mixed character of the states law, Louisiana courts from an early date also routinely attributed to term
this common law meaning. See, e.g., Municipality No 2 v Hennen, 14 La 559, 1840 WL 1096, Johnson v Quarles, 3 La. 90, 1831 WL
682. Because term could be ambiguous, a body of scholarship has developed to explain its technical meanings. See, e.g., SAL
LITVINOFF, 5 CIVIL LAW TREATISE Section 6.1.
63 The Code of Practice and parts of the Civil Code of 1825 were republished in the Louisiana Legal Archives (1937), but the articles therein were either inconsistently numbered or not numbered at all. In this essay, code numbers correspond to those of the
Civil Code of 1825, (ed. Morgan; 1853), cited note 11 supra; and Fuquas edition of the Code of Practice). Hereafter a reference to
an article of the Civil Code of 1825 is abbreviated as CC article -------.A reference to the Code of Practice is abbreviated as CP
article ______. Current article refers to the legislation in force on the date of publication of this paper. So, for example, to demonstrate the continuity of a particular idea from the earlier civil code to the current civil code, this essay reports that the principle
of CC article 2043 (1825) is now elaborated in current CC article 1778.
64 For example, CC article 603 (1825) stipulated that a usufruct could begin or end upon arrival of a term or a condition. If the
title of the usufruct has limited the right to it to commence or determine (Author: i.e., terminate) at a certain time, or in the event
of a certain condition, the right does not commence or determine, till the condition happens or the time elapses. As CC Article
603 indicated, a term, like a condition, could be either suspensive or resolutory. For the creation and extinction of a usufruct upon
a term or a condition, see now current CC article 610. The concept of term could also affect a buyers duty to pay interest on a
60
29
Relying upon the concept of term, CC article 2052 announced a limit on an obligors duty
to perform:
Where a term is given or limited for the performance of an obligation, the obligor
has until sunset of the last day limited for its performance, to comply with his obligation, unless the subject of the contract cannot be done after certain hours of that
day.
By locating CC article 2052 in a title Of the Nature and Division of Obligations, the law
commissioners extended the articles scope beyond duties ex contractu to the other categories of duties (ex delicto, quasi ex contractu, quasi ex delicto). The Civil Code articulated
several corollaries whose goal was to balance the considerable rewards of credit arrangements against a creditors risk that his debtor, despite his best efforts, might be unable to
fulfill his obligations on an agreed date. Many of these corollaries have endured in the revision of the obligations articles for which Professor Litvinoff was the reporter. First, the
term of an obligation operated for the obligors advantage; in the language of CC article
2048, the term is always presumed to be stipulated in favour of the debtor.65 But the
debtor could lose the advantage if he became unable to render his performance or voluntarily renounced his duty.66 Second, good faith bound the obligor not to prejudice his undertaking by voluntarily rendering himself unable to fulfill it. Third, if an obligor had until
the last day of the term to perform, then a creditor could not demand performance from
the obligor until the arrival of the last day. This last principle had practical implications for
the formulation of actions and exceptions under the Code of Practice.
price: When the seller has granted to the buyer a term for the payment, the interest begins to run from the end of that term. CC
article 2532 (1825). For other applications of term in the context of buyers duties, see CC articles 2540-41.
65 Thus, a vendor could not put his purchaser in mora or default before the arrival of a specified term. Nettles v Scott, 17 La 336,
1841 WL 1291. The principle of CC 2048 was recast in a common sense formulation in current CC article 1779 which provides: A
term is presumed to benefit the obligor unless the agreement or the circumstances show that it was intended to benefit the obligee or both parties. If a term under the new articles did not perforce benefit the obligor exclusively, then the obligor alone could
not renounce the benefit. Current CC article 1780 addresses the obligors renunciation when he is the exclusive beneficiary of the
term. (The party for whose exclusive benefit a term has been established may renounce it.) Comments to the new article make
it clear that its formulation benefited from both the Quebec Draft Civil Code (1977), a precursor of the new Quebec Civil Code,
and the Israeli Contracts Law article 42.
66 This principle generalizes ideas made explicit in other Civil Code articles regulating term. For example, CC article 2049: Wherever there is a cession of property, either voluntary or forced, all debts due by the insolvent shall be deemed due, although contracted to be paid at a term not yet arrived. . . Millaudon v Foucher, 8 La. 582, 1835 WL 708 ([. . .] article 2049 [. . .] requires not
merely an actual insolvency or inability to pay debts, but a surrender of property either voluntary or forced, for the common
benefit of creditors. The general rule is that what is due by contract at a particular time cannot be demanded before expiration of
the intermediate time.) CC article 2050: If a debt be contracted to be paid at a term, and security be given for the payment, if,
from whatever cause, the security should fail, or be rendered insufficient, the creditor may, before the obligation is due, exact
either that good security be given, or that the debt be immediately paid. See now current CC articles 1782 and 1783. These two
articles envisioned two separate hypotheses that depended upon the obligors becoming insolvent. Current CC article 1782
makes clear that some performances, especially those of an entirely personal character, do not require an obligors solvency. The
obligor should lose the benefit of the term only when he has become insolvent and his performance requires his solvency. Article
1782 thus provides: When the obligation is such that its performance requires the solvency of the obligor, the term is regarded
as nonexistent if the obligor is found to be insolvent. Assuming the common situation that the obligors performance depends
upon his solvency, and he has promised security for his performance, then he may lose the benefit of the term unless he furnishes
sufficient security. See now current CC article 1783.
30
IV.
Resonating in the Code of Practice (CP articles 14, 15, 16, 330, and 332),
the Concept of Term Highlights Links with Cause of Action, Right of Action,
and Exceptions
Having sketched key features of term in the Civil Code, we next seek resonances of the
theme in the Code of Practice. For example, CP article 14, appearing in a title Rules Applicable to All Civil Actions, provided:
Every obligation gives impliedly a right of action to enforce its execution;
but the obligation and the right of action do not always arise at the same time.
Thus in contracts to be performed at a future period, the obligation which grows
out of the contract, arises at the very moment of making it, but the right of action
growing out of it, arises only when the stipulated term has arrived. [Italics added]
Rich in practical instruction about civil actions, CP article 14 linked the term for performance of an obligation to a venerable distinction between cause of action, and right of
action both primordial enforcement mechanisms crucial in judicial procedure. Comparable to intrt agir (interest to act) in French procedure, cause of action was suggested
by the familiar aphorism in French procedure pas dintrt, pas daction (no interest, no
action). The French phrase most nearly approximates the facet of procedural standing
called by proceduralists injury in fact. CP article 15 elaborated this French aphorism in
different terms: An action can only be brought by one having a real and actual interest
which he pursues, but as soon as that interest arise (sic), he may bring his action.
CP article 14 highlighted an implication of the civil code regulation of term and particularized it for the category of contracts. Although an obligation arose upon conclusion of a
contract, the enforceability of duties embodied in the contract could be postponed until
arrival of the term. The second sentence of CP article 14 linked a substantive principle enshrined in CC article 2052 (i.e., Rights and duties arise upon a contracts conclusion)with
a procedural principle (enforceability of contractual rights may be postponed until arrival
of a term). This illustration of the operation of a substantive rule in a procedural context
likely was designed to help early Louisiana lawyers cut pathways through unfamiliar terrain.
Echoing a principle embodied in CC article 2052, CP article 16 justified the postponement
of an enforcement action until the expiration of the last day stipulated for fulfillment of the
obligation: In all actions which are to be brought at the end of a stated period, the right of
action subsists until the last day has expired.
Litigators should especially admire the way in which the law commissioners pressed CP
article 16 beyond the substantive definition of term and toward defenses by means of exceptions. Legacies of classical Roman procedure, exceptions, like modern demurrers and
motions to dismiss, have long been deft organizers of a civil proceeding. An exception
31
brings into focus the order in which issues should be decided. If material facts are not contested before the trial court, then an exceptor-defendant can often short-circuit a suit by
interposing a defense either to defeat the suit altogether (peremptory) or delay its progress
(dilatory).67 For example, an action for enforcement of an obligation subject to a term, if
filed before the last day granted for performance, may be dismissed on an exception of
prematurity.
CP article 330 sketched the defensive character of exceptions by announcing that exceptions are [. . .] used by the defendant to retard, prevent, or defeat the demand brought
against him. Closely related to the regulation of term, CP article 332 defined the role of
the dilatory exception in characterizing the claimants demand as premature. Dilatory exceptions [. . .] do not tend to defeat the action, but only to retard its progress.
V.
Sounding the Theme of Natural Obligations in the Civil Code (CC 1749,
1750, 1751, and 1752)
Understanding the interdependence of the codes through their combined regulation of
natural obligations requires us to thread a pathway through a number of different contexts
in which such obligations are regulated. Physically remote from one another, the contexts
seem unrelated. Analogical interpretation seems to generate a centrifugal force that scatters leitmotifs associated with natural obligations (e.g., error of law, cause, unjust enrichment). Seemingly inconsistent rules on the actionability of natural obligations compound
the difficulty of figuring them out. The regulation is a puzzle in the sense that it recognizes
natural obligations as binding in some circumstances, but not other similar ones. The precise circumstances for enforcement of a natural obligation can elude us, especially because
Louisiana jurisprudence has long recognized natural obligations in many different situations.68
A comprehensive vision of natural obligations emerges as we trace several leitmotifs
through the codes. The code contexts for natural obligations include [i] the Civil Codes
definition of natural obligation, where it is located in a hierarchy of categories of obligations (CC articles 1749-1752); [ii] the Civil Codes regulation of error of law, where a natural obligation may block an obligors recovery of a payment or performance that he could
have legitimately reclaimed otherwise (CC article 1840); [iii] the Civil Codes regulation of
unjust enrichment (CC 2280-2285), which barred a debtors recovery of a payment for
which he was not civilly liable because it recognized a natural obligation; [iv] the Code of
Practice rules that authorize no action to enforce the obligation, and yet bar recovery of
what has been paid (CP articles 9, 17, and 18). [v] A fifth context for natural obligations
consisted of editorial comments in the Civil Code that viewed natural obligations in light of
the common law idea of consideration and the civilian idea of cause.
67
68
On the dilatory exception, see generally 1 LOUISIANA CIVIL LAW TREATISE section 6.6.
See, generally, SAL LITVINOFF, 5 CIVIL LAW TREATISE Chapter II, Sections 2.1 2.45 (2001).
32
VI.
Centripetal Force Generated by Civil Code Article 1752
CC article 1752 seems to generate a centripetal force that counteracts the centrifugal force
of analogical interpretation observed in our account of natural obligations.69 This article
simplified analysis by inviting us to view all natural obligations either retrospectively or
prospectively, whatever the circumstances in which they arise. The article classified the
universe of natural obligations by asking whether the obligation in question was asserted
(i) as a defense by a recipient of a payment against an obligors suit for reimbursement or
(ii) by an obligor when his creditor demanded of him a payment promised in the future.
VII. Descending from General Principles to Particular Applications (CC articles 1749-1752)
Like authors of many classics inspired by the logical rigor of the enlightenment,70 the
drafters of the Civil Code organized its regulation of obligations in a hierarchy descending
from general principles to particular instances. According to Professor Litvinoff, a civilian
contemplates obligation as an abstraction, a formal scheme that can be applied to, or
abstracted from, an infinite number of concrete situations.71 The Civil Code regulation of
obligations began with a general theme, the nature and division of obligations.
CC Art 1749: An obligation is, in its general and most extensive sense, synonymous with duty.
CC article 1750 subdivided obligations into three categories civil, natural, and imperfect
or moral according to their enforceability by judicial demand. It may seem odd that the
drafters regulated imperfect obligations as if they were non-obligations, but, provided the
drafters reasons were understood, this was indeed the case. According to CC article 1750,
imperfect obligations created no right of action, nor are they entitled to any legal recognition.
For the principle of CC article 1752 (1825), see now, current CC article 1761.
For example, this hierarchy may be found in Ren Descartes, Meditations and Baruch Spinoza, Ethics. Among jurists, see J
DOMAT, LES LOIX CIVILES DANS LEUR ORDRE NATUREL, which made a deep imprint upon both the French Civil Code and its Louisiana
counterpart. Descent from general to specific is clear in particular in Montesquieus THE SPIRIT OF LAWS, which opens with Book I,
Of Laws in General and then is subdivided into, among other themes, the laws of nature, and the positive laws.
71 See SAL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.9 (2001).
69
70
33
A comparative law context will clarify the drafters reasons for including unenforceable
imperfect obligations in the taxonomy of obligations. As the drafters hinted, civilians and
common lawyers had different understandings of imperfect obligations; for the latter,
they were enforceable; for the former they were not. These differing views prompted the
drafters to assure that their tripartite classification scheme did not compound misunderstandings about imperfect and natural obligations. Their comments represented a pragmatic foray into comparative law.
According to a comment inserted into Article 1750 of the projet of the Civil Code, English
doctrine deemed natural affection a moral or imperfect obligation that could constitute a
valid consideration for a conveyance. Perhaps English lawyers needed natural affection
to justify a conveyance because their doctrine lacked a comprehensive regulation of gifts
like that found in the Civil Code.
If, as the drafters seem to have realized, Louisiana law had followed English doctrine on
natural affection as consideration for a conveyance, then it would have been nonsensical
for the Civil Code to have shorn an imperfect obligation of all legal effect. 72 The most reasonable interpretation of CC article 1750 was that an imperfect obligation had no effect
within the civil code scheme of obligations. In supporting this interpretation, the drafters
comments showed that the integrity of Louisiana law required attention to differences between the civil law and English doctrine on imperfect obligations: 73
Although this kind of obligation [imperfect, moral] has no legal effect whatever
[Authors note: i.e., in the civil code], its definition is introduced because it is frequently referred to by commentators and sometime with such loose expressions, as
might induce a belief that it had the effect of a natural obligation, unless the contrary were declared. In the common law of England, natural affection which is an
imperfect obligation, is a good consideration for a conveyance. As we do not mean
to sanction this principle, it was the more necessary to declare it [the difference between English and Louisiana law] because of the danger of introducing from the
jurisprudence of our sister states principles inconsistent with that of our own.
VIII. The Conditional Enforceability of Natural Obligations (CC article 1750,
CC article 1890)
See now comment C under current CC article 1760.

Taking the drafters of the Civil Code of 1825 at their word, the 1984 revision of the obligations articles justifiably eliminated
imperfect obligations from the universe of obligations set forth in CC article 1750 of the Civil Code of 1825. If, as the earlier code
had announced, imperfect obligations had no legal effect, then there was no reason to retain them. Comment C, Current CC article
1760. The law commissioners editorial remarks indicated their strategy for including imperfect obligations in the Civil Code,
although they acknowledged that these obligations had no legal effects within the Civil Code. By illuminating links between consideration and natural affection, the commissioners remarks demonstrated their awareness of consideration doctrine prevailing
in England and other states and their intention that Louisiana law on cause should evolve in a different direction than consideration. From the time of the Louisiana Purchase, common lawyers who streamed into Louisiana naturally would have wondered
about the validity of imperfect obligations. Completeness required inclusion of imperfect obligations even though pedagogical
comments were required to dispel confusion on the part of the lawyers and courts. By 1984, Louisiana law had outgrown the
need for imperfect obligations, and they were suppressed.
72
73
34
CC article 1750 next addressed natural obligations; depending upon specific situations,
these might be enforceable or unenforceable. The conditional enforceability of natural obligations justified their location upon an intermediate rung between civil obligations and
imperfect obligations. CC article 1750 [2]:
A natural obligation is one which cannot be enforced by action [authors brackets:
e.g., like the imperfect obligation] but which is binding on the party who makes it in
conscience and according to natural justice [authors brackets: e.g., unlike an imperfect obligation, but like a civil one]
CC article 1751 next posited four categories of natural obligations:
1. Such obligations as the law has rendered invalid for the want of certain
forms or for some reason of general policy, but which are not in themselves immoral or unjust.
2. Such as are made by persons having the discretion necessary to enable
them to contract, but who are yet rendered incapable of doing so by some provision
of law.
3. When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.
4. There is also a natural obligation on those who inherit an estate, either
under a will or by legal inheritance, to execute the donations or other dispositions,
which the former owner had made, but which are defective for want of form only.
For the moment we leave aside the question whether the list in CC article 1751 was exhaustive or illustrative; the answer (illustrative) emerges later when the two codes regulations of natural obligations are read in pari materiae.74
It is difficult to put order into a comprehensive collection of natural obligations, whether
already identified or yet to be identified. CC article 1752 provided an organizing principle
upon which the collection could be organized. That article instructed us to ignore for the
moment the specific circumstances in which natural obligations might arise, and to focus
instead on the fact that any natural obligation produced two effects, the first retrospective
and the second prospective. The first addressed payments already made by the obligor. The
second addressed an obligors promise to make a future payment:
1. No suit will lie to recover what has been paid, or given in compliance with a natural obligation.
2. A natural obligation is a sufficient consideration for a new contract.
From an early date, the Louisiana Supreme Court seems to have assumed the illustrative character of the list in CC article 1751.
Alternatively, perhaps the justices believed that a liberal interpretation of the Civil Code would permit the subsumption of a great
number of different obligations under the rubric natural obligations. See, e.g., Hills v Kernion, 7 Rob. La. 522, (plaintiffs paid
official tobacco inspectors for their additional services though they realized that the extra payments were not legally required.
Plaintiffs were denied recovery of the payments because they were deemed to have been made in recognition of a natural obligation. Reliance upon an analogy between CP 18 and CC 2281). The illustrative nature of the listing of natural obligations is apparent now in current CC article 1762 (Examples of circumstances giving rise to a natural obligation are [. . .]) According to current
CC article 1762, comment b, the first sentence of this Article purports to solve a controversy well known in continental doctrine
and Louisiana jurisprudence, that is, [whether the list contained in the prior civil code articles] was intended to be exclusive or
merely illustrative. However, the comments under current CC article 1762 do not mention the regulation of natural obligations in
the Code of Practice; that code made it reasonably clear that the listing was always intended as illustrative.
74
35
Like a previously quoted comment under CC article 1750, CC article 1890, which appeared
in a chapter titled Of the Cause or Consideration of Contracts,75 equated motive or
consideration with cause:
By the cause of the contract, in this section, is meant, the consideration or motive
[French: cause suffisante] for making it, and a contract is said to be without a
cause, whenever the party was in an error, supposing that which was his inducement for contracting to exist, when in fact it had never existed, or had ceased to
exist before the contract was made.
Combining the principles of CC articles 1752 and 1890, an unenforceable obligation, if it
fell within the category of natural obligations for a particular reason such as prescription,
could constitute a valid cause for a fully enforceable obligation to pay in the future. But to
insulate an obligor against his impulsive action, enforceability was made to depend upon
his making a new promise to pay in recognition of this natural obligation.76
IX.
Natural Obligations: Civil Code Regulation of Error of Law (CC article
1840)
The accuracy of the preceding analysis of natural obligations may be checked by entering
the Civil Code through another channel. Starting anew with the regulation of obligations in
general, we pass to vices of consent (e.g., error, fraud, duress, threats). To a general statement about error and cause,77 as evoked in CC article 1890, CC article 1840, appearing in
the regulation of vices of consent, added restrictions and modifications that could weaken the invalidating force of error of law in a rescission action. CC article 1840 provided:
Error in law, [. . .] invalidates a contract, where such error is its only or principal
cause, subject to the following modifications and restrictions:
1. Although the party may have been ignorant of his right, yet if the contract made,
under such error, fulfilled any such natural obligation as might from its nature induce a presumption that it was made in consequence of the obligation and not
from error of right [law] then such error shall not be alleged to avoid the contract.
Going back several centuries in English law, a researcher would discover that consideration was an analogue of cause in canon
law doctrine and that these bases of enforcement were associated in English jurisprudence. A W B Simpson, Innovation in Nineteenth Century Contract Law, 91 LQR 247, 258. By the time the Louisiana commissioners tackled their drafting assignment, however, the term consideration had acquired the objective and formalistic meanings their comments assigned it. It would consequently no longer have been appropriate to couple a civilian concept of cause with the Anglo American understanding of consideration. This contrast between cause and consideration illustrates nicely my earlier remark that the discourse of Louisiana lawyers depended decisively upon a civilian lexicon while the form of many transactions might depend equally decisively upon the
lexicon of American commerce. Indeed, cause can figure in the form of transactions as importantly as consideration. Though
new code articles might today clearly separate the concepts of cause and consideration, the discourse of Louisiana commercial
lawyers pressed on all sides by colleagues elsewhere in the United States, scrambled them back together again. See generally
Shael Herman, Detrimental Reliance in Louisiana Law---Past, Present, (and Future?) The Code Drafters Perspective, 58 TUL. L. REV.
707 (1984).
76 This is the formulation in the current obligations articles. See now current CC article 1761
77 For the link between error and cause in the current Civil Code, see now article 1950 Error may concern a cause when it bears
on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the
qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded,
as a cause of the obligation.
75
36
Thus, the natural obligation to perform the will of the donor, prevents the donee
from reclaiming legacies or gifts he has paid under a testament void only for want
of form. [Authors note: evoking example number 4 in CC article 1751]
6. If a party has an exception that destroys the natural as well as the perfect obligation, and, through error of law makes a promise or contract that destroys such exception, he may avail himself of such error; but if the exception destroys only the
perfect, but not the natural obligation, error of law shall not avail to restore the
exception.
[Italics added]
Echoing CC article 1890, the drafters comment beneath CC article 1840 linked the
themes of cause and error of law:
As there has [sic] been much diversity of opinion and many contradictory decisions
on the effect which errors in law ought to have upon contracts we have thought it
proper to offer some positive enactments on the subject [. . .] If an opinion of my
right [lopinion que jai de mon droit]
is the sole cause of my agreement and
that opinion is false, there is then no cause, no more than there would be if the error bore on a substantial fact, which was the cause of the contract. [Italics added]
X.
Unjust Enrichment: A New Ingredient in Analysis of Natural Obligations
By relying upon natural obligations to blunt the invalidating force of error of law, the Civil
Code cast doubt on whether a debtor could reclaim from a recipient what he had paid or
delivered in error. The doubt cannot be dispelled if our analysis remains within the confines of CC article 1840. Interpretation in pari materiae justifies our reference to the Civil
Code regulation of quasi-contracts. Isolated from other articles in the title Payment of a
Thing Not Due CC article 2280 authorized a debtor to reclaim what he had paid in error:
He who has paid through mistake, believing himself a debtor, may reclaim what he has
paid. Reinforced by CC article 2280, CC article 2282 echoed the themes of CC article 1840
and CC article 1890 by linking error with cause: A thing not due is that which is paid on
the supposition of an obligation which did not exist, or from which a person has been released.
Interpretation in pari materiae requires us to return to CC article 1752, for besides producing an organizing principle noted previously, the article qualified the quasi-contractual rule
announced in CC article 2280:
CC Article 1752[1]: No suit will lie to recover what has been paid, or given in compliance with a natural obligation.
The Civil Code did not assign priority to either CC article 1752 or CC article 2282.
Assuming the civil codes organic coherence, then CC article 17 encouraged harmonization of the articles whenever possible. Supposing that a debtor could not have
been sued for performance of the obligation, then once he had paid, could he recov-
37
er the payment? Neighboring articles regulating quasi-contracts should dispel our

confusion. As in the regulation of term, the exception as a means of defense had
an important role in describing the debtors legal posture: According to CC article
2281: To acquire this right [the right to reclaim the payment], it is necessary that
the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery.
CC article 2285 provided:
But this exception [that would block the plaintiffs claim] must be such that it shall
extinguish even all natural obligation. Thus he who, having the power to plead prescription, shall have made payment, cannot claim restitution.
Visualizing the border between recoverable and unrecoverable payments depends upon
grasping the difference between natural obligations and civil obligations, a theme introduced at the beginning of our analysis of natural obligations. By invoking the exception, CC
article 2284 foreshadowed the regulation of natural obligations in the Code of Practice:
The payment from which we might have been relieved by an exception that would
extinguish the debt, affords ground for claiming restitution. [Italics added]
Although CC article 2284 did not describe in detail the kind of exception required to extinguish a debt, it confirmed the possibility of such relief (a peremptory exception would
be the preferred defense.) Consistently with CC article 1840, CC article 2285 amplified
the nature of the exception by declaring that it must be such that it shall extinguish
even all natural obligation (authors note: in addition to civil obligation).78
XI.
Prescription and Natural Obligations
Before exploring the Code of Practice for its resonances with the Civil Code regulation of
natural obligations, let us double back to CC article 1751 to reinforce the link between prescription and natural obligations mentioned in CC article 2285: CC article 1751 [3] provided: When the action is barred by prescription, a natural obligation still subsists, although
the civil obligation is extinguished.
The first seven words of CC article 1751(3) supposed that the obligation in question would
otherwise be fully enforceable if the prescriptive period had not run. Let us return to CC
article 1840 [error of law] for it too illuminated the procedural role of the exception based
upon prescription:
5. A promise or contract, that destroys a prescriptive right, shall not be avoided by
an allegation that the party was ignorant or in an error with regard to the law of
prescription;
6. If a party has an exception, that destroys the natural as well as the perfect obligation, and, through error of law, makes a promise or contract that destroys such
exception, he may avail himself of such error; but if the exception destroys only the
For current regulation of unjust enrichment, see now CC articles 2298 to 2314 (i.e., Book III, Title V, Chapter 2 of Enrichment
Without Cause).
78
38
perfect, but not the natural obligation, error of law shall not avail to restore the exception. [Italics added]
As our reading of CC article 1840 shows, analogical interpretation permits reading a code
on different levels and projecting the codes meanings in numerous and sometimes unexpected directions. We made this point earlier in describing the centrifugal character of
analogy. Besides linking cause with error and natural obligation, CC article 1840 reinforced
links between the Civil Code regulation of prescription and the Code of Practice regulation
of exceptions.
XII. The Code of Practice Regulates Obligations in Terms of Actions and Exceptions (CP articles 9, 16, 17, and 18)
As kindred texts originating from a single team of drafters, the two codes amplified each
other. Interpretation in pari materiae enables us to discover their common design. The
Code of Practice presupposed the Civil Codes regulation of natural obligations. Without an
analysis of the Civil Codes regulation of natural obligations, the counterpart regulation of
the subject in the Code of Practice would be unhelpful. For its part, the Civil Code regulation of natural obligations presupposed the Code of Practices procedural apparatus of actions and exceptions. A debtors counsel would be functioning in a vacuum if he were unaware of offensive tactics whereby an obligee enforced a duty and defensive tactics urged by
an obligor to defend his position. In the Civil Code, however, the interplay between actions
and exceptions was incidental to the regulation of natural obligations which stood in the
foreground. By contrast, in the Code of Practice, actions and exceptions stood in the foreground while natural obligations were introduced incidentally to illustrate the operation of
actions and exceptions.
CP article 9 linked the definition of civil obligation in CC article 1749 with the idea of civil
action: A civil action is one which is brought for private interest, such as a suit to obtain
the payment of a sum due, the restitution of property, or reparation for an injury done by
words or action. CP article 20 illuminated the offensive/defensive relationship between a
right of action and a corresponding exception: He who has a right of action to claim what
is due to him has a right yet more evident to use the same cause of action as an exception,
in order to preserve his rights.
Having laid the groundwork of actions and exceptions, CP article 17 then evoked by analogy the concept of natural obligation first encountered in CC article 1752[1]: Natural obligations give no right of action, but what has been paid pursuant to those obligations is not
subject to repetition (i.e., restitution).79
XIII. CP Article 17: An Index of Illustrative Character of List in CC Article
1751
See Hill v Kernion, 7 Rob. 522, 1844 WL 1465 (relying upon analogy between CC article 2281 and CP article 18 (16) to deny
recovery of payment determined to have been made in recognition of natural obligation).
79
39
Earlier we noted that the Civil Code of 1825 did not state clearly whether the list of natural
obligations in CC article 1751 was illustrative or exclusive. Read in isolation, the list in CC
article 1751 seems exclusive (natural obligations are of four kinds). Unlike CC article 1751,
however, CP article 17 equivocated on the number of natural obligations. Indeed, the
phrasing of the French version of CP article 17 signaled that the list was illustrative. On
appelle obligations naturelles, celles pour lesquelles la loi naccorde point daction; telles
sont celles. . . [such as those]. More explicit than the English version of CP article 17, the
French locution (those are natural obligations, for which the law gives no right of action;
they arise on contracts entered into by persons who) suggests the possibility of identifying
new natural obligations in the fullness of time. By the mid 1850s, Louisiana courts were
well on the road to identifying new natural obligations. With the help of CP article 17, the
Louisiana legal community might have been spared long debates on whether the original
list of natural obligations in the Civil Code was exclusive or illustrative. In 1985, a new code
article on natural obligations finally put the issue to rest by declaring the list in CC article
1751 illustrative.80
Promoting analogical interpretation of the two codes, CP article 18 confirmed a link between natural obligations and payment in error that the Civil Code had introduced: He
who pays through error, what he does not owe, has an action for the repetition of what he
has thus paid, unless there was a natural obligation to make such payment[.] CP article 18
also added a rule on burden of proof: but he must prove that he paid through error, otherwise it shall be presumed that he intended to give.
CP article 18 implied that a transferors recovery of a payment made in error required his
act to have been prompted by a sense of duty or onerous cause.81 Otherwise, his act was
presumed a liberality motivated by a gratuitous cause (animus donandi). Until this point,
our survey of natural obligations has not discussed donations. By referring to this category
of gratuitous contracts, however, the Code of Practice amplifies our understanding of contrasts between cause and consideration. A donation is a contract like any other in the sense
that it requires consent of the parties, their contractual capacity, a lawful object, and a lawful cause. Unlike an onerous contract, however, a donation is a unilateral contract animated by a gratuitous cause; this contrast explains how an obligor may become obligated
without receiving a return benefit. By invoking the Civil Code regulation of donations, CP
article 18 recalled the difference between gratuitous cause and onerous cause. One who
transferred a payment to another person may have acted out of a valid gratuitous cause
and expected no return benefit for his gesture. To recover the payment the obligor had to
prove that he [. . .] paid through mistake, believing himself a debtor, [CC article 2280]
and that the mistaken payment was prompted by an onerous cause. If the obligor could not
bear the burden of proving his error, then he would be presumed to have made a valid do-
See now current CC article 1762.

Current CC article 1761 captured the policy expressed in CP article 18. CC article 1761 provides: A natural obligation is not
enforceable by judicial action. Nevertheless, whatever has been freely performed in compliance with a natural obligation may not
be reclaimed. A contract made for the performance of a natural obligation is onerous.
80
81
40
nation to someone who was the object of his generosity. In this last case, the transferor of
the payment was not a debtor and the recipient of the payment was not his creditor.82
XIV. Specific Performance: Explicit Overlap Between the Codes
Until this point, the code links that we have identified have been established by implication. In the first example, these links were suggested by repetition of a single word (e.g.,
term); in the second example, by phrases (e.g., natural obligations). Sometimes, however, the drafters expressly forged links between the codes. We shall explore examples of these explicit links in the Civil Code regulation of remedies, in which the reader was directly
guided to the regulation of judicial practice in the Code of Practice.
XV.
Ambiguities on Standards for Specific Performance
Unfortunately, the regulation of remedies in both codes contained ambiguities that bred
judicial confusion; and this confusion has lingered nearly two centuries after their adoption.83 Evidencing the hazards of invention in a mixed jurisdiction, these remedial ambiguities seem emblematic of contrasting civilian and common law conceptions of judicial discretion. Even if the initial regulation of remedies had been completely consistent, the
courts over decades would likely have faced interpretive problems when the two codes
were no longer yoked together. Dating from 1808, the regulation of remedies in the Civil
Code endured in recognizable form until the obligations revision of 1984-85. By contrast,
the state legislature over many decades modified the Code of Practice, and in 1960, replaced it with the Code of Civil Procedure. This new code continued much of the procedural terminology that originated the Code of Practice of 1825. But the Code of Civil Procedure
also reflected the rising national influence of the federal rules of civil procedure. By contrast, the Civil Code never felt a thorough national impact from a unitary body of substantive rules. Though the Louisiana drafters watched carefully legal developments under the
Uniform Commercial Code, its scope is much narrower than that of the Civil Code, and its
influences upon the Civil Code have been episodic and relatively slight.84
XVI. Compulsory Execution in the Codes of 1825
Blending civilian and common law terminology, the codes combined regulation of specific
performance generally projected a policy of compulsory execution that we would recognize
The current Civil Code articles reinforce this theme. According to comment B, current CC article 1762, the present formulation
of article 1762 is intended to enhance the usefulness of the concept of natural obligation in distinguishing between mere generosity, which constitutes a gratuitous cause, and obedience to a moral duty, which may determine the cause as onerous. West L S
A CC article 1762, annotated. To the same effect, see also comment D, current CC article 1761.
83 For discussion of the misunderstandings in light of doctrine, see Weingarten v North Gate Mall 404 So 2d 896 (1981).
84 For the influences of the UCC upon the Louisiana Civil Code, see generally, Shael Herman, E Pluribus Unum: The Paradox that
Safeguards Louisianas Mixed System, 78 TULANE. L. REV. 457 (2003).
82
41
today. Following a traditional English distinction between ordinary and extraordinary relief, some provisions in each of the codes couched the preferred remedy in terms of whether a monetary award could repair a claimants injury.85 If the monetary remedy sufficed to
repair the harm, then specific performance was denied; if monetary relief was insufficient,
then the remedy was granted. But the codes regulation of remedies did not consistently
follow the English distinction. Sharply limiting the judicial discretion familiar in English
law, some code articles shifted toward a familiar civilian analysis that afforded a breach
victim rather than a judge discretion to elect a remedy. These articles were based upon traditional civilian distinctions between obligations to give, to do, and not to do.
XVII. Civil Code Preference for Performance to Enforce Obligations to Give
Under the Civil Code of 1825, an inquiry into the proper remedy for breach of contract
would have begun by locating the obligation in question within a tripartite classification of
obligations derived from the Romanist tradition.86 These categories appeared under two
Civil Code subchapters: Of Obligations of Giving and Of Obligations to Do and Not to
Do. Obligations to give and not to do were normally enforceable by compulsory execution,
while a breach of an obligation to do was remedied by a damage award. In operation, the
lines separating the three categories of obligations were sometimes unclear, and their
tripartite classification scheme sometimes might seem artificial. For example, according to
the Civil Code of 1825, delivery of a promissory note already endorsed or payable to the
bearer was enforceable by specific execution because it fulfilled an obligation to give. 87 By
contrast, the transfer of a note payable to order and not endorsed, or any other debt
requiring an act of transfer, constituted an obligation to do. Its breach was remedied by
damages, not compulsion. The contrasting remedial treatment is explained in terms of a
Although Louisiana has never had a court of equity or chancery modeled upon the English courts, the Louisiana Supreme Court
was from an early date conversant with equitable doctrines of performance that had originated in English law. In accordance
with choice- of- law principles, the Louisiana judges applied equitable doctrines to contracts governed by the laws of another
state. For example, in Lynch v Postlethwaite, the Supreme Court granted the vendor an order of specific performance of a contract for the sale of a steamboat. The relief went well beyond standard relief for a buyers breach; for without inquiring into
whether the purchasers breach had caused the seller irreparable harm, the court ordered the Purchaser to pay the price in the
form of a down payment and a series of promissory notes payable at fixed rates. The payments were conditioned upon the sellers delivery of a bill of sale or deed for the vessels transfer. 7 Mart o s 293. Notably, the relief in Lynch more closely followed
standard enforcement for an obligation to give under the Civil Code than the relief based on English equitable standards. For
general background on equity in Louisiana, see VERNON PALMER, THE LOUISIANA CIVILIAN EXPERIENCE: CRITIQUES OF CODIFICATION IN A
MIXED JURISDICTION 223 et seq (2005), reviewed by Shael Herman, Under My Wings Every Thing Prospers, supra note 8.
86 The object of the performance is the criterion for the traditional classification of obligations in three categories, namely, obligations to give, obligations to do, and obligations not to do. In the first two categories the performance consists of positive acts
such as giving or doing something, while in the third category the obligor is bound to perform through negative acts of abstention
or forbearance. See SAL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.4 (2001). For background on the Roman classifications, see
generally Shael Herman, Specific Performance: A Comparative Analysis I, 7 EDINBURGH L. REV. 5-26 (2003), translated in Shael Herman, Pacta Sunt Servanda trifft auf den freien Markt: Die Durchsetzung von Versprechen im spanischen und US-merikanischen
Recht, Zeitschrift fuer Rechtsvergleichung, Internationales Privatrecht und Europarecht 94-105 (ZfRV 2005/16].
87 CC article 1919.
85
42
civilian doctrine that has traditionally insisted that a debtor may not be compelled to
perform an act that would intrude upon his personal freedom.88
XVIII.Code of Practice Remedial Scheme Rests upon the Tripartite Division of
Obligations in the Civil Code (CP 628)
With the phrase practice of the courts, CC article 1921, located in a chapter entitled Obligations to Do and Not to Do sent the reader to the Code of Practice chapter entitled Of
the Execution of Judgments Which Require Something to Be Given or Something to Be
Done. In that chapter, CP article 628 echoed the tripartite classification of obligations as a
basis for distinctions among execution orders:
Orders of execution are different, according to the nature of the judgments to be
executed; for these judgments may direct that a thing shall be given, or a thing be
done or omitted, or a sum of money be paid, and this variety, subjects the execution
to different rules. . .
XIX. Enforcing Obligations to Give (CP articles 630-635)
Following the principle of pacta sunt servanda, the Civil Code preferred compulsory performance for enforcing obligations to give. Like modern Spanish law,89 the Civil Code of
1825 presumed the victim was the master of his claim, and that there had to be good reasons for the court to deny his election of relief. This presumption would significantly reduce a judges discretion in a familiar common law process of weighing the equities. Furthermore, the Civil Code, unlike common law doctrine, did not insist upon a calculus of
market efficiency that would normally prompt the breach victim to mitigate his damages.
As an index of the Louisiana Civil Codes disinterest in mitigation of damages, the doctrine
was not codified until the 1985 revision of obligations, though before that year references
to mitigation of damages could be found scattered about Louisiana jurisprudence.90
Lawyers trained in the common law might be frustrated by the absence from the Civil Code
of a criterion of inadequacy of damages, the time-tested equitable standard for granting a
The principle pacta sunt servanda (promises shall be kept) is generally invoked for enforcement of promises to give or transfer.
The principle of pacta sunt servanda was limited by nemo potest cogi ad factum praecisere, a principle that has traditionally opposed enforcement of personal acts. The principle of nemo potest shields a recalcitrant obligor from contempt sanctions and arrest. For the Spanish understanding of the two slogans, see generally, J.J. Saenz Soubrier, La ejecucin en la Nueva Ley de
Enjuiciamiento Civil. Ttulo Ejecutivo. Ejecucin provisional y definitiva. in Congreso Constituyente de la Asociacin Espaola de los
Abogados Especializados en Responsibilidad Civil y Seguro, at www.asociasionabogadosrcs.org/ponencias/pon6.pdf, last visited
November 6th, 2007.
89 See, generally, Francisco L Grimalt, Remedies, in INTRODUCTION TO SPANISH PATRIMONIAL LAW 91 (ed. S Van Erp & A. Vaquer, 2006);
RAFAEL SERVER, EL CUMPLIMIENTO FORZOSO DE LAS OBLIGACIONES (1995); Shael Herman, Specific Performance: A Comparative Analysis,
7 EDINBURGH L. REV. 5-26; 194-217 (2003).
90 See now current CC article 2002 and cases in accompanying comments. It is difficult to generalize about the prevalence of mitigation among different civilian systems. For example, the Italian Civil Code, enacted in the 1940s, has a strong commitment to
mitigation of damages. See generally, CARLO ROSELLO, IL DANNO EVITABILE. By contrast, modern Spanish law has almost none.
88
43
compulsory order. Instead of referring to this standard, CP article 630 prescribed the steps
leading to enforcement of a writ of possession:
When the judgment directs one of the parties to deliver an estate to the other, the clerk
must issue a writ of possession, by which the sheriff shall be enjoined to put him, in whose
favour the judgment was rendered, in possession of the estate and the appurtenances belonging to it, according to the judgment.
Presumably a petitioner who relied upon CP article 630 would not have to defend his
choice of compulsory relief. As the victim of the breach, he occupied the moral high
ground, and the breaching party could not challenge the choice. Accordingly, the victim
was entitled to have the court respect his request for specific performance.
CP article 632 afforded an obligee draconian remedies against a recalcitrant obligor who
resisted a writ of possession:
the sheriff shall [NB: not may] proceed to put in full possession of the estate the
party who has obtained the judgment, and shall compel the other to depart, even by
breaking open the doors, if it be necessary, and by summoning the posse
comitatus if resistance be made.
CP article 635 amplified the obligees coercive remedies:
If the party, who has been condemned to deliver a slave or other object, conceals it,
or carries it out of the jurisdiction of the court, so that the sheriff cannot seize it, the
party, in whose favour the judgment was rendered, shall have the choice either of
instituting an action for damages, or of compelling a specific execution [excution
spcifique] of the judgment, by obtaining a sequestration of his other property, until he has satisfied it, in the same manner as is practiced on judgments directing a
specific performance, as is stated below [French: une condamnation de faire ou de
ne pas faire une chose dtermine, ainsi quil est dit ci-aprs]
Although the Code of Practice authorized draconian remedies to exact an obligors compliance with an order of possession, it did not expressly authorize injunctive relief against
him. Such relief as one could find in the Code of Practice was in rem, not in personam. An
order in favor of the obligee might still affect the object described in the judgment, and
perhaps the obligors other assets through a sequestration. It is true that the Code of Practice envisioned an obligors presence during the execution process, but the court would not
have affirmatively ordered him to do anything; rather, the obligor seems to have been
viewed as a bystander observing the sheriffs actions. CP article 633 suggested the obligors
passive role:
The party, against whom the judgment has been rendered, shall be considered to
have complied with it, by quitting the estate, and leaving the other party free to
take possession. [Italics added]
44
XX. A Criticism: Absence of Injunction a Defect in Regulation of Specific

Performance
From a common law perspective, the absence from the Code of Practice of authorization of
an injunction against a recalcitrant obligor, backed up by a contempt sanction, seems a
shortcoming in the regulation of compulsory performance. Unhindered by an injunction, a
recalcitrant obligor could frustrate a judgment of possession by mortgaging or selling the
property before recording or publishing the judgment. In that case, even if the debtor
quits the estate, as CP article 633 required, the judgment creditor might end up with real
estate that he could not exploit or occupy. Denied possession of the property by a senior
mortgagee, a judgment creditor in an extreme case might still have to service the debt encumber the property.
If the Code of Practice had authorized affirmative injunctive relief, then the judgment
debtor could have been ordered personally to transfer the property upon the purchasers
payment of the price. The order might also have prohibited the obligor from negotiating
with a third party the sale or mortgage of the property. To compel the obligor to perform,
the injunction could have been coupled with several ancillary measures: for example, a
contempt citation against the obligor that was repeatedly enforced by jail sentences, or liquidated damages that built up daily, like the French astreintes. Yet, this Code of Practice
regulation of the debtors duty to comply curiously did not mention contempt sanctions
against the debtor. The injunction was addressed to the sheriff, who presumably would not
have been cited for contempt. Sequestration of a debtors assets, breaking in the doors of
his storehouse, and assembling a posse comitatus were concededly powerful tools for pressuring a debtor to comply with the judges order. But an order jailing the debtor for his
noncompliance would have maximized the courts control over him by depriving him of all
power to resist indirectly the seizure of the estate and its delivery to the creditor.
The absence from the Code of Practice of injunctive relief for enforcing obligations of giving is puzzling. To a civilian, the absence might seem a token of nemo potest cogi ad factum praecisere.91 But this answer would be wrong or unduly simplistic. The absence was
surely not due to the drafters lack of information about injunctive relief; indeed, the drafters understood injunctive relief and contempt sanctions very well. The Civil Code devoted a
title to injunctions. Many of the Civil Code provisions were mirrored in CP articles 296309; these provisions spelled out specific forms of injunctions as well as measures for enforcement through contempt and fines.
It is true that the injunctions contemplated by the Code of Practice were prohibitory rather
than affirmative, but the enforcement sanctions including imprisonment would have been
identical in either case. Furthermore, the Code of Practice contained a title Of the Arrest
of the Debtor. Consisting of twenty-nine articles, the title detailed both the grounds for
arresting the debtor, and the means by which he could be liberated from confinement.
91
See note 40-42 supra.
45
XXI. Speculation about the Influence of Spanish Law upon Regulation of

Specific Performance
Given the importance of Spanish law at the time of the codifications under consideration,
the drafters could have visualized compulsory relief along the lines of modern Spanish law
that regards performance as a standard remedy and backs up this remedy with an embargo. The law of Spanish Louisiana provided other coercive options that bore a distinct resemblance to the contempt sanction. For almost four decades immediately before the Louisiana Purchase, Luisiana was governed by Spanish laws including the Ordinances and
Instructions of Don Alejandro O Reilly, the Spanish governor.92 OReillys Ordinances contained a template for a remedy analogous to contempt against a recalcitrant obligor. Bearing earmarks of Spanish laws in ultramarine provinces such as Louisiana (e.g., alguazil
mayor, different rules applicable to different social classes and professions), O Reillys
regulation of executory proceedings authorized jailing a debtor for certain forms of disobedience to a court order: 93
[The judge] shall order immediate execution, by addressing an order in writing to
the alguazil mayor, directing him to summon the debtor to pay the demand, or in
default thereof his property shall be seized [. . .] By virtue of the [. . .] order the
alguazil mayor shall summon the debtor; if [the latter] complies the execution
shall cease. If otherwise, his property shall be seized and held in custody by the depositary general; unless he shall give good and sufficient security for the payment of
the sum in which he is condemned by the sentence. But if he shall not give security
aforesaid, or if he has not property sufficient, he shall be imprisoned, unless exempted therefrom by the privilege of nobility, which is also enjoyed by the military, regidors, officers of finance, women, lawyers, physicians and other distinguished persons. [Italics added]
XXII. Coercive Measures in Las Siete Partidas
Available in 1820 in an English translation prepared by Louis Moreau-Lislet and James
Brown under a commission from the Louisiana legislature,94 the Siete Partidas, III, Title
VIII authorized pressuring a debtor by seizure of his assets. Like modern measures to effectuate quasi in rem jurisdiction, judicial assentimientos [seizure], could be employed to
pressure a debtor to answer a suit he had been avoiding by granting a petitioner possession
of the debtors property. The order would first affect movable assets; if seizure of these
movables did not sufficiently bend the debtors conduct to the court order, then the creditor could also seize his immovables.
For background on OReillys legislation, see generally, Under My Wings, supra note 8, 1563-66.
For background on foreclosure by executory process under OReillys legislation, see Under My Wings, supra note 8, 1566.
94 On the Louisiana translation of Las Siete Partidas as a users manual for the early civil codes, see generally Under My Wings,
supra note 8, 1559-1563.
92
93
46
We may never know whether Spanish law influenced the drafters ideas on compulsory
performance. If, indeed, there was a Spanish influence, it is difficult to point to an authoritative text because Spanish law was not embodied in a national civil code until 1889. On a
subconscious level, medieval Spanish remedies perhaps affected the drafters thinking. As
a law commissioner, Moreau Lislet would have been ideally situated to have taken guidance from Spanish doctrine. Yet, despite the seizure provisions we have quoted above, the
translators did not translate the Partidas regulating assentimientos because, as the translation stated, they [were] not in force here. According to the translators note, this title
related to the compulsory process by which the plaintiff is put into possession of the property of the defendant who refuses to appear in court upon citation. As no part of it is in
force it is not therefore translated.
XXIII.
Obligations to Do (CC articles 1920, 1921)
The phrasing of the regulation of obligations to do suggests that common law doctrine exercised considerable influence upon the drafters thinking. Passing from regulation of obligations to give to obligations to do the English version of the Civil Code notably employed the common law term, specific performance (French: excution spcifique) CC
article 1920 provided:
On the breach of any obligation to do, or not to do, the oblige is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require dissolution of the contract [. . .]. [Italics added
English doctrine seems to have especially influenced the phrasing of CC article 1921:
In ordinary cases, the breach of such a contract entitles the party aggrieved
only to damages, but where this would be an inadequate compensation, and the
party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the
courts. [Italics added]
The Civil Codes guidance for obligations of doing and not doing could have been more
precise than it was. The goal of the Revision of 1984 was to make the guidance more precise.95 By limiting specific performance to cases which permit it, CC article 1920 seems to
have shifted away from a civilian classification scheme that we had earlier identified for
obligations to give.96 To the contrary, the article seems to have conferred on the judge a
discretion to balance equities that was familiar in common law doctrine. Assuming the
drafters intention to confer this judicial discretion, the phrase cases which permit it may
be understood as a shorthand instruction to grant damages or specific performance depending upon the anticipated reparability of the prejudice by monetary award. This inSee SAL LITVINOFF, 5 CIVIL LAW TREATISE Section 1.14 (2001).
According to Sal Litvinoff, the phrase cases which permit it could have been better translated as if the execution is possible. S.
Litvinoff, Obligations s 168 in 7 LA CIVIL LAW TREATISE 310-315 (1975), cited in Weingarten v North Gate Mall, 404 So2d 896, 900
(1981)
95
96
47
struction seems to have been enlarged by the phrase in CC article 1921 where this would
be an inadequate compensation. This last phrase could have easily been understood as
following common law doctrine by granting a judge broad discretion to assess the reparability of the harm.
The last quoted phrase of CC article 1921 recalled the division between ordinary and extraordinary relief familiar in English doctrine. But we ought not too hastily conclude that
these articles shifted fully to English standards for specific relief. As Sal Litvinoff has argued,97 CC article 1921 may have mistranslated the French original. Assuming the mistranslation, then the article merely articulated a standard of objective possibility by asking
whether an obligor had power to perform in an absolute sense, not whether a compulsory
order would unduly burden the obligors activities or the courts supervisory powers.
If this last assumption is correct, then CC article 1920 would dilute a judges discretion to
order or deny performance based upon reparability of the damages. The articles ambiguity
would have allowed a civilian and a common law lawyer to reach opposed conclusions
based upon the same language. The analyses of the rival traditions would come down to a
matter of judicial discretion about which the code did not speak clearly. The common lawyers conclusion would be along the lines already discussed. Applying a traditional Romanist standard, however, a civilian could conclude that the phrase cases which permit it assumed that the requested performance was objectively possible, i.e., the contractual object
existed; the obligor had the power to perform, and the obligee still desired the performance. If, so the civilian would argue, the court lacks the discretion to deny the remedy
sought by the aggrieved plaintiff, then the clause cases which permit it is not an instruction to inquire into the burdensomeness of the performance for the obligor, the feasibility
of having the creditor mitigate his damages, or the difficulty of judicial supervision of the
order.98
As suggested at the beginning of this section, the ambiguous regulation of compulsory execution in the two codes is likely productive of a sort of confusion that can occur in a mixed
jurisdiction in which the drafters, marching to different drummers, have afforded courts
very different methods for determining proper enforcement remedies. Taken together, CC
articles 1920-21 should have prompted the aggrieved victim to reflect soberly upon the risk
associated with assuming either an approach based thoroughly upon common law doctrine
or the civil law approach to remedies for breach. The current obligations articles should
render his choice of relief clearer than it was under the Code of Practice. But even today,
judicial tests for performance remedies seem inconsistently applied. To avoid granting
specific performance, Louisiana courts seem sometimes to embrace a deus ex machina that
encourages sidestepping enduring questions first raised in the two codes.99
See Justice Denniss scholarly analysis in Weingarten v Northgate Mall, 404 So2d 899-901.
These civilian arguments are based upon 2 S. Litvinoff, Obligations, Section 168, 7 LA CIVIL LAW TREATISE 310-315 (1975), cited
in Weingarten v Northgate Mall, 404 So 2d 899-901.
99 Weingarten v Northgate Mall is instructive because the court in that case seems to have welcomed a deus ex machina. On initial
impression, the facts presented a strong case for specific performance: the landlords actionable breach consisted of an obligation
not to do, for which specific performance would have been the appropriate remedy. As is typical in shopping center leases, the
landlord affirmatively covenanted not to expand its improvements without the prior written consent of the tenants. Such a cove97
98
48
Curiously, at least to a civilian, the deux ex machina might even involve reproaching an
innocent breach victim although his proper conduct should put him on the moral high
ground and thus beyond reproach.100 Though Louisiana courts have regularly declared
specific performance the primary or preferred remedy for breach of an obligation to give,
the victim in many instances must still bear the burden of showing his entitlement to the
remedy. Specific relief is surely not his for the asking, it is fair to expect that a typical Louisiana court, in exercise of its considerable discretion, would insist upon balancing equities
along lines familiar in English doctrine. In some cases the court could require of the plaintiff security for specific relief as well as proof of his mitigation efforts. Assuming the likelihood of this judicial behavior when a plaintiff requests specific performance, then the
avowed judicial commitment to specific performance could ring hollow for many petitioners. In my opinion, our law has gone too far down an Anglo-American road for the current
Civil Code standard for specific performance significantly to strengthen the plaintiffs
hand.101 This review of the codes of 1825 suggests that we have been traveling that road for
almost two centuries.
nant typically contemplates that a landlords expansion will at a minimum reduce available customer parking below a stipulated
ratio (e.g., so many spaces for so much of tenants leased footage). Furthermore, the landlords construction work could have
seriously disrupted the existing tenants businesses. By requiring the landlord to obtain the tenants written approval, the parties
could have negotiated arrangements to minimize harm from disruptions. According to the version of the Civil Code in force at the
time that the Weingarten facts occurred, obligations not to do were compellable by specific performance and injunctions. Furthermore, Weingarten and the landlord had stipulated that in the event of default, specific performance would become available
without a showing of irreparable harm. There was also no reasonable way for the plaintiff to have mitigated its damages from the
breach. Weingarten sued the landlord to halt construction of a new expansion of the mall, and to demolish all buildings erected in
violation of the landlords obligation. The court of appeal confirmed an injunction against the defendant, finding that specific
performance was warranted; it noted that the parties had contracted for the remedy of specific performance without a showing
of irreparable harm. The supreme court agreed that the breach had occurred, but found specific performance inappropriate because of the financial burden imposed upon the breaching landlord. The court also found that the demolition of the offending
buildings would have unduly taxed the courts supervisory powers unreasonably. The judges were impressed by the fact that
third parties in good faith (e.g., lenders and new tenants) had acquired rights in the property in reliance upon the legality of the
enlarged improvements. The deus ex machina to which I referred appeared in Justice Denniss brief, off handed reproach of the
plaintiff for a procedural mistake: on being denied preliminary relief by the trial court, the plaintiff did not promptly take an appeal of right to challenge the correctness of the trial judges denial. Instead, the plaintiff waited to appeal the ruling until after the
merits trial seeking a permanent injunction. By that time, observed the Justice Dennis, the landlords expansion project was nearly complete and new stores therein had opened for business. Query, at the time of the original suit, could the plaintiff have filed a
lis pendens in the public records to notify the new tenants that they were building at their own risk? The decision does not say.
For our present inquiry, evaluating the opinion is also complicated by the fact that the civil code articles at issue dated back to the
Civil Code of 1825, while the relevant procedural regulation of injunctions, inspired by common law standards and the federal
rules of civil procedure, appeared in the Code of Civil Procedure enacted in the 1960s.
100 This suggests a type of moral hazard in which the law seems to favor the wrongdoer whose actions have produced the damages that the victim complains of.
101 For the Civil Codes current standard for specific performance, see now CC article 1983. Upon an obligors failure to perform an
obligation to deliver a thing, or not to do an act, or to execute an instrument the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance
is at the discretion of the court To reinforce the policy of article 1983, comment a declared that a claimant has a right to specific
performance rather than a mere right to appeal to the discretion of the court. Yet, despite this policy, subsequent cases have
made clear the judicial intention to retain discretion over remedies. In Concise Oil & Gas Partnership v Louisiana Intrastate Gas
Corporation, 986 F 2d 1463 (Cir 5), a seller sued for specific performance of a gas contract. The court confirmed that specific
performance was the preferred remedy, but that the remedy could be withheld when specific relief was impossible, when inconvenience or cost of performance was greatly disproportionate to the resulting damages, when the obligee had no real interest in
receiving performance or when the specific relief would have substantial negative effects on interests of third parties. These
criteria followed those announced in Weingarten v Northgate Mall. According to the court in Concise Oil & Gas, an order of specific
performance was unnecessary because the petitioner had been fully compensated by a damage verdict. Although the court did
not mention this point, specific relief for a seller is extremely rare because he cannot sue the purchaser for performance of a duty
49
XIV. In Conclusion: A Cautionary Note

It would be helpful to know whether the examples of analogical interpretation suggested
in this essay are emblems of a broader phenomenon in the codes. Especially with the
Code of Practice, care must be exercised with the analogical method for it is not a universal tool. Some titles of the Code of Practice (e.g., prerogative writs, jury trials, habeas
corpus) codified common law institutions not elaborated in the Civil Code. Well known
in Louisiana even before statehood, these institutions were meant to give Louisiana a
face familiar to other states and the federal government. I doubt that these institutions
would respond well to analogical interpretation. Putting these institutions aside, however, the Code of Practice still contained several hundred provisions based upon a civilian
lexicon. At least the first four hundred fifty articles fit this description. By analogy, these
articles should yield many links with the Civil Code of 1825. As we have shown with
term, for example, a researcher could trace through the codes the use of any talisman
or term of art (e.g., synallagmatic, aleatory). Often the conceptual framework of a particular Civil Code chapter (e.g., mortgages) presupposed a related procedural framework
(e.g., hypothecary action), and these conceptually related regulations in the codes may
be analyzed in tandem. An earlier paper identified in both codes a parallel regulation of
injunctions for which analogous interpretation was indispensable.102
Beyond the scope of this paper, it would be interesting to categorize and evaluate cases
in which Louisiana courts recognized analogies between the Civil Code and the Code of
Practice. For example, in Soulie v Soulie,103 the defendant was sued in the probate court
as curator of an absentee. The Supreme Court ruled that the probate court lacked powers other than those specially delegated by statute. It found that CP articles 924, 925,
963, and 965 regulating the powers of curators did not grant the probate court authority
to adjudicate claims against an absentees estate. To reinforce its interpretation of the
relevant CP articles, the court drew analogies between CP articles and CC article 53.
Suggesting that the legislature continued to think of the two codes together long after
their enactment dates, the Supreme Court also noted that a legislative act of 1828 simultaneously amended certain articles in both the Civil Code and the Code of Practice.
By concentrating alternately upon clusters of provisions in each code, this essay has
sought to demonstrate ways in which analogical interpretation enlarged each codes
meaning beyond limits it would have reached if read in isolation. This exercise in analogy has two interconnected rewards. First, the technique promotes logical coherence and
elegance; it aids discovery of principles and policies in the codes that might otherwise
remain hidden. Second, the exercise poses a navigational exercise for exploration of two
codes no longer in force. Far from an antiquarian curiosity, this exercise, as a vehicle for
to pay the price unless the object of the sale has already been delivered to the buyer, leaving only a sellers executory duty to pay
the price. But see Lynch v Postlethwaite, supra note 45.
102 See Under My Wings, supra note 8, 1568-1570.
103 5 La 26, 1832 WL 947.
50
refreshing in us the thought patterns of our legal ancestors, recalls the unique role of our
legal heritage in American law.
Our dependence on an American legal curriculum heavily weighted toward case law puts
us at risk of losing our paths among our codes. As lawyers, we read cases by analogy every day; indeed, this is an essential goal of stare decisis, for it assumes that like facts warrant like rulings. Analogical reading of cases is routine, though these are usually the
products of different judges who likely never knew each other, may have had different
legal philosophies, and lived at periods remote from each other. If these obstacles do not
hinder our exercises in analogy, then a fortiori we should read the subject codes by
analogy because they were created by a single team of commissioners who conceived
them as a unitary project.
51

DOI: 10.989765/2016.5.4.98.3
Un couple surprenant: prescription extinctive et

libert contractuelle
(Point de vue qubcois sur les accords relatifs la prescription en vertu des Principes du
droit europen du contrat)
Sylvette Guillemard*
Depuis 2003, la France rflchit une rforme du droit des obligations et de la prescription, rflexion suscite par plusieurs aspects vieillots de cette branche du droit. Il en va
ainsi du dlai de droit commun de la prescription, que nous serions tente de qualifier de
vieux trentenaire. La loi envisage a pour objet de moderniser les rgles foisonnantes,
complexes et parses de la prescription en matire civile, qui donnent un sentiment
d'imprvisibilit et parfois d'arbitraire, [et qui] s'avrent inadaptes l'volution de la
socit et diffrent sensiblement de celles des principaux Etats europens.104 La dsutude
est souvent criante en regard des rgles adoptes ailleurs. Des textes rcents, notamment
ceux labors en vue dharmoniser les rgles au sein de lEurope, les Principes
europens,105 ont divis par dix la dure du dlai de droit commun en vigueur pour le
moment en France. Lors de ladoption du Code civil du Qubec en 1994, le codificateur
qubcois a, lui aussi, nettement raccourci le dlai. Au del de la seule question des dlais,
* Professeur lUniversit Laval (Qubec).
104 L. BTEILLE, Rapport no. 358 (2007-2008) fait au nom de la commission des lois, dpos le 28 mai 2008, concernant la
Proposition de loi portant rforme de la prescription en matire civile. [en ligne] <http://www.senat.fr/rap/l07-358/l07358.html> [consult le 29 mai2008]. Pour le projet de loi lui-mme, voir <http://www.henricapitant.org/IMG/pdf/Avantprojet_de_reforme_du_droit_des_obligations_et_de_la_prescription_et_expose_des_motifs.pdf> [consult le 2 juin 2008].
105 Expression que nous utiliserons dans ce texte pour dsigner les Principes du droit europen du contrat.
52
ces deux ensembles de normes comportent des diffrences fondamentales quil nous a paru
intressant de comparer.
On le sait, la prescription prsente une double face,106 le terme dsignant aussi bien un
mode dacquisition des droits rels [qu] un mode dextinction de droits personnels et
rels.107 Le point commun entre les deux notions est le passage du temps. Cest dailleurs
par ce biais que le codificateur qubcois prsente en une seule disposition les deux types
de prescriptions: La prescription est un moyen dacqurir ou de se librer par
lcoulement du temps [].108 Le mcanisme dont il sagira ici est celui par lequel le temps
qui scoule permet dteindre un droit par non-usage ou dopposer une fin de nonrecevoir une action109 quon lon dsigne soit comme prescription extinctive, expression retenue par le Code civil du Qubec, soit comme prescription libratoire.
Par ailleurs, la prescription extinctive peut toucher tous les droits du patrimoine
puisquelle teint aussi bien les droits personnels (droit de crance) que les droits rels
(droit de proprit, dusufruit, hypothque, etc.).110 Cest du premier type dont il sera
question, celui dont on apprend aux tudiants quil est lun des modes dextinction des obligations111 et dont un auteur a crit que les droits de crance [] constituent [le] domaine
dapplication par excellence.112 Il sagira principalement de la prescription extinctive en
matire contractuelle, puisque llment dclencheur de cette rflexion est la disposition
des Principes du droit europen du contrat113 autorisant les parties passer des accords
relatifs la prescription.
Avant de sattarder cet exercice de la libert contractuelle, il convient den rappeler le
contexte en prsentant dabord brivement le corps de normes que constituent les
Principes europens, sa fonction et ses effets (1). Par la suite, les rgles de la prescription
extinctives seront exposes, tant selon les Principes europens que selon le droit qubcois,
ce qui permettra de les comparer (2), puis une courte tude sera consacre lautonomie
M. TANCELIN, Des obligations. Actes et responsabilits, 6e d., Montral, Wilson & Lafleur, 1997, p. 729.
F. FRENETTE, De la prescription, dans Le Barreau du Qubec et la Chambre des notaires du Qubec (dir.), La rforme du Code
civil, t. 3, Sainte-Foy, Presses de lUniversit Laval, 1993, p. 567.
108 Article 2875 C.c.Q. La formule utilise dans larticle 2183 du Code civil du Bas-Canada tait pratiquement identique, comme
lest galement celle de larticle 2219 du Code civil en France.
Maurice Tancelin prcise dailleurs quil sagit dune seule institution. (M. TANCELIN, supra note 106, p. 729).
109 Art. 2921 C.c.Q.
110 J.-L. BAUDOUIN et P.-G. JOBIN, Les obligations, 5e d., Cowansville, ditions Yvon Blais, 1998, p. 792.
111 Art. 1671 C.c.Q.
112 J.-J. TAISNE, Prescription et possession. Prescription: domaine dapplication, Jurisclasseur, Civil Code, fasc. 30, para. 32.
113 Art. 14:601.
En ralit, ils font plus que rgir les contrats: Les Principes se limitent a priori la thorie gnrale des obligations
contractuelles. Cependant la plupart des sujets traits dans les chapitres 10 17 touchent non seulement aux obligations
contractuelles, mais aux obligations en gnral. Ainsi, le terme crance frquemment employ dans ces chapitres dnote un
droit lexcution, contrepartie dune obligation dexcuter, quelle que soit la source, contractuelle ou extra-contractuelle, de
lobligation.
Le fait que des portions apprciables de cette III me partie relve de la partie gnrale des obligations plutt que du seul droit des
obligations contractuelles a pos la Commission un problme dadquation avec lintitul de Principes du droit europen du
contrat. Il a t dcid en dfinitive de conserver lintitul tout en reconnaissant que certains principes sappliquent aussi des
obligations non contractuelles []. (G. ROUHETTE (dir.), Principes du droit europen du contrat, Paris, Socit de lgislation
compare, 2003, p. 24) [Les italiques sont dans le texte original.]
106
107
53
de la volont en la matire (3). Pour terminer, il faudra sinterroger sur les consquences
de cet exercice par les parties (4).
1. Les Principes europens du droit du contrat

Le trait instituant la Communaut conomique Europenne, le trait de Rome, prvoyait
que les tats membres sengagent simplifier les formalits de reconnaissance et
dexcution des dcisions judiciaires et arbitrales.114 Cet objectif fut atteint par la Convention de Bruxelles, entre en vigueur en 1968.115 Au cours des ngociations entourant cet
instrument conventionnel, il est apparu quune uniformisation des rgles de conflits de lois
en matire civile et commerciale allait naturellement de pair avec celle des conflits de
juridictions, ce qui a donn lieu ladoption de la Convention de Rome sur la loi applicable
aux obligations contractuelles.116
Si ces deux textes unifiaient les rgles de droit international priv au sein de lespace
europen, il nen subsistait pas moins des disparits des rgles de fond entre les droits
nationaux. Ds 1974, le professeur danois Ole Lando a envisag une solution plus radicale
pour parvenir une relle harmonie en la matire: crer un corps de rgles substantielles
uniformes. Selon lui, march unique, monnaie unique doit correspondre au moins
partiellement un droit unique. Pour des raisons peut-tre stratgiques, plutt que
denvisager immdiatement un Code civil europen ou mme des rgles uniformes en
matire dobligations, le groupe de travail quil dirigea, surnomm la Commission Lando
et form majoritairement de professeurs duniversit, se concentra sur llaboration de
principes applicables aux contrats.117
Les Principes europens sont destins aux seuls pays europens118 et ont vocation
sinsrer dans la structure juridique de lUnion Europenne. Ils sont adosss au droit
communautaire et constituent en quelque sorte un code de commerce uniforme pour
lEurope, sans avoir de valeur normative, formant plutt des modles privs. Leur article
premier indique la faon dont ils peuvent tre utiliss. Sa substance se rsume ainsi: les
parties peuvent les choisir pour rgir leur contrat, en particulier lorsquelles narrivent pas
25 mars 1957, art. 220.
Convention sur la reconnaissance et lexcution des jugements trangers, Bruxelles 27 septembre 1968, transforme depuis en
un Rglement europen (Rglement (CE) No 44/2001 du Conseil du 22 dcembre 2000, [en ligne]
<http://admi.net/eur/loi/leg_euro/fr_468A0927_01.html> [consult le 2 juin 2008]).
116 Convention sur la loi applicable aux obligations contractuelles, Rome, 1980.
117 En fait, lobjectif fondamental des Principes europens est de servir de base un Code europen des contrats dont ils constituent une premire base: Les Principes fournissent le fondement juridique ncessaire aux mesures prises et prendre par les
organes de lUnion europenne. (G. ROUHETTE, supra note 113, p. 22).
118 Art. 1:101 (1): Les prsents Principes sont destins sappliquer en tant que rgles gnrales du droit des contrats dans
lUnion europenne.
114
115
54
sentendre sur lapplication dun droit national; ils peuvent tre appliqus lorsque les
contractants ont souhait voir leur relation rgie par les principes gnraux du droit ou en
cas dabsence de dsignation de loi applicable; et finalement, ils servent combler les
lacunes ventuelles du droit applicable au contrat.119
Le principe universel de la libert contractuelle trouve videmment son plein
panouissement dans les Principes europens.120 Il est la base mme de leur utilisation
par les parties. En dautres termes, les parties peuvent choisir de les utiliser ou non mais,
au-del de cela, si elle les utilisent, elles peuvent galement convenir de les modifier ou
den carter des dispositions, sauf celles qui sont impratives, comme lindique larticle
1:102(2): les parties peuvent exclure lapplication dun quelconque des prsents Principes
ou y droger ou en modifier les effets, moins que les Principes nen disposent autrement.
Et comment en disposent-ils? Lorsquils prvoient que telle rgle ne peut tre exclue, cela
ne pose pas de difficult.121 Le fait galement quune disposition sapplique nonobstant
toute stipulation contraire en rvle bien le caractre impratif.122
Les Principes europens sont proches dun Restatement, puisant leurs sources dans les
systmes juridiques de tous les tats membres.123 En tant que principes gnraux du
droit des contrats, lun de leurs objectifs est dtre une formulation moderne de la lex
mercatoria.124 Ils entendent rgir tous les contrats en gnral125 et ne se limitent donc pas
aux relations commerciales. Leur champ dapplication stend ainsi aux contrats de
consommation.
Les Principes europens, qui comptent 200 articles, ont t labors en trois phases dont
lordre rpond une logique de common law o remedies precede rights: excution et
inexcution du contrat, en 1995, formation, validit et interprtation en 1999 puis, en
2001, pluralit de dbiteurs, cession de crance, substitution, compensation, prescription
et illicit.
Leur prsentation est particulirement intressante et riche non seulement pour les les
usagers du droit126 mais galement pour les chercheurs car chaque article est accompagn
dun commentaire et, au besoin, dillustrations de son application. De plus, sont exposes
ses sources ainsi que la position des droits nationaux europens en la matire.
Sur les difficults poses par lapplication des Principes europens, voir J. MESTRE, Objet des Principes dans C. PRIETO (dir.),
Regards croiss sur les Principes du droit europen du contrat et sur le droit franais, Aix-en-Provence, Presses Universitaires dAixMarseille, 2003, 103.
120 Art. 1: 102
121 Art. 1:201 sur la bonne foi, art. 2:105 (2) et (3) sur les clauses dintgralit, art. 4:118 sur lexclusion ou la limitation des
moyens en cas dinvalidit du contrat.
122 Art. 6:105 sur la dtermination unilatrale par une partie dun lment du contrat, art. 9:509 (2) sur le pouvoir discrtionnaire
du juge de rduire les pnalits manifestement excessives.
123 G. ROUHETTE, supra note 113, p. 24. Ils ont galement comme source la Convention de Vienne de 1980.
Ce corpus de rgles est donc un droit savant, uvre duniversitaires principalement, qui recherchaient llaboration dun nouveau droit commun par la voie comparatiste. (C. PRIETO, Prface dans C. PRIETO supra note 119, 9, p. 11.)
124 G. ROUHETTE, supra note 113, p. 23.
125 Et mme plus, voir supra note 113.
119
55
Les Principes europens sont prsents en franais et en anglais. Exercice bien connu des
juristes qubcois, le principe hermneutique pos par la Cour de Justice des
Communauts europennes [] exige quen cas de doute [un article] soit interprt la
lumire de la version tablie dans lautre langue.127
2. Le rgime de la prescription extinctive
Traiter de la prescription incite, videmment, en voquer les dlais mais oblige en outre
se pencher sur sa nature. Dans les lignes qui suivent, ces questions seront abordes tant en
vertu des Principes europens (2.1) quen vertu du droit qubcois (2.2), ce qui permettra
den faire ressortir ventuellement les similitudes et les divergences.
2.1 Selon les Principes europens
Dans le cadre des Principes europens, seule est prise en compte la prescription extinctive
ou plus exactement libratoire car selon la solution retenue, le droit nest pas teint. Il
continue dexister mais le dbiteur a le droit de refuser dexcuter.128 Ces propos semblent
donner, au passage, une rponse la question classique: la prescription constitue-t-elle
une rgle de procdure ou de fond? La qualification est importante, en particulier en droit
international priv, car cest delle que dpend la loi applicable. Une qualification
procdurale dclenchera lapplication de la loi du tribunal saisi (lex fori) alors quune qualification substantielle entranera celle de la loi qui rgit le contrat.129
Les deux grandes familles de droit occidentales ne voient pas toujours la nature de la prescription du mme il. Les commentateurs des Principes europens rsument ainsi la situation: [l]a doctrine dominante dans la plupart des pays de lEurope continentale est
aujourdhui que la prescription relve du droit substantiel et que cest le droit lui-mme qui
est teint. [En revanche, en common law], la prescription libratoire [] est la limitation
des actions, donc de nature procdurale.130 Lanalyse manque de nuances et omet un
renversement de tendance au sein du monde anglo-saxon. Presque vingt ans avant
ladoption des dispositions des Principes europens sur la prescription, la GrandeBretagne sest dote dune loi tablissant la nature substantielle des dlais de prescriptions
trangers.131
Id, p. 49.
Id, p. 517.
129 Sur la question de la qualification, de ses fondements [d]ans toute action o il est question dappliquer une loi trangre et
de ses consquences, voir les motifs du juge LaForest dans Tolofson, o il estime que la qualification revt une importance
cruciale. (Tolofson c. Jensen; Lucas (Tutrice linstance de) c. Gagnon, [1994] 3 R.C.S 1022, en particulier para 74 89).
131 Foreign Limitation Periods Act, 1984, (R.U.) 1984, ch. 16. Voir Tolofson, supra note 129, para 83-84.
Depuis 1994, en raison de la dcision de la Cour suprme dans laffaire Tolofson, en provenance de Colombie-Britannique et o le
fond du litige tait rgi par la loi de la Saskatchewan, il est clair que la common law canadienne attribue la prescription, au
moins en droit international priv, une qualification substantielle. Rappelant que depuis quelques annes, [l]es tribunaux
canadiens ont [] commenc dmythifier la [] raison qui tient lide que les lois en matire de prescription visent les
recours et non les droits, le juge LaForest crit: Quant la distinction technique entre droits et recours, les tribunaux canadiens
en ont, pendant quelque temps, peu peu rduit la porte pour des considrations de principe pertinentes. Jestime que notre
127
128
56
La solution retenue par les Principes europens serait-elle plus de nature procdurale que
substantielle? premire vue, la rponse nest pas vidente. En effet, ce qui fait la
diffrence entre loptique civiliste et la position initiale de la common law132 est le sort
rserv au droit aprs lexpiration du dlai. Dans le premier cas, on dit gnralement quil
nexiste plus, quil est en quelque sorte mort juridiquement, alors que dans le second, on
pourrait le qualifier de virtuel puisque cest laptitude en demander lexcution en justice133 qui disparat. Maurice Tancelin fait remarquer quen droit civil, en ralit, la prescription extinctive teint laction en justice mais non la crance elle-mme (ce qui laisse
subsister une obligation naturelle, dpourvue de sanction juridique).134 Le temps qui
scoule transforme donc la nature de lobligation. Alors quelle tait au dpart de nature
juridique, au-del dun certain dlai, elle dgnre, comme disait le doyen Carbonnier,
elle change de genre, le droit nintervenant alors que si la morale ly oblige. Cest donc vers
le chapitre des effets de la prescription quil faut se tourner dans lespoir dy trouver une
rponse. Larticle 14:101 (1) des Principes europens dispose: Au terme du dlai de prescription, le dbiteur est fond refuser dexcuter lobligation. La formulation vague ne
dit pas, en ralit, ce quil advient de lobligation. Est-elle anantie ou non? Il semble que
les rdacteurs eux-mmes ne soient pas fixs si lon en croit les propos gnraux de
Georges Rouhette135 sur la prescription, propos qui perptuent le mystre de la qualification: Selon le chapitre 14, leffet de la prescription est que le dbiteur est fond refuser
lexcution. Ce nest ni une simple restriction laction, oprant sur le plan procdural au
cours dun procs, ni une complte prescription extinctive, qui teint automatiquement les
droits et obligations.136
Heureusement, le commentaire sous larticle prsentant la prescription nous sort de
lobscurit et il ne reste qu prendre la rponse quil donne comme telle: La prescription
est ainsi conue comme une institution de droit substantiel137mme si il est prcis
ailleurs que lobligation continue dexister.138
Le dlai de droit commun retenu par les Principes europens peut paratre trs court
puisquil est de trois ans.139 Alain Bnabent voque en la matire le capharnam140 du
Cour devrait suivre cette tendance. Il me semble particulirement appropri de le faire en matire de droit international priv o
[] la classification rgle de fond rgle de procdure vise dterminer quelles rgles assurent le bon fonctionnement du tribunal saisi, par opposition celles qui dterminent les droits des deux parties. (Id., para 83, 85. [Le soulign se trouve dans le
texte original].) Il conclut donc lapplication en matire de prescription de la loi rgissant le fond du litige.
132 Id., para 79.
134 M. TANCELIN, supra note 106, p. 732. Ou, comme lcrivait le doyen Carbonnier, de lobligation civile teinte schappe une
obligation naturelle. (J. CARBONNIER, Notes sur la prescription extinctive (1952) 51 Rev. trim. dt. civil, 171, 176).
135 Georges Rouhette a fait partie, ds 1987, des diffrentes commissions uvrant sur les Principes europens.
137 Id., p. 517.
138 Id., p. 533. Les commentaires indiquent que lorsque, selon certaines thories, au terme du dlai, la crance cesse dexister, il
sagit dun effet renforc de la prescription alors que lorsque, lexpiration du terme, le dbiteur acquiert seulement le droit de
refuser dexcuter, il sagit dun effet attnu. Dans ce cas, la prescription est alors un moyen de dfense au fond. (Ibid.).
139 Art. 14:201. Il est assorti dune seule exception, pour les crances constates en justice, dont le dlai de prescription est fix
dix ans (art. 14:202).
140 A. BNABENT, Le chaos du droit de la prescription extinctive, dans Mlanges ddis Louis Boyer, Toulouse, Presses de
lUniversit des sciences sociales de Toulouse, 1996, 123, p. 124.
57
droit des divers ordres juridiques europens, o les dlais varient, selon les pays et les
matires vises, de deux mois trente ans.141 Si lon ne sen tient quaux dlais de droit
commun, ils sont gnralement longs mais tout aussi variables. Pour nen donner que
quelques exemples, trente ans actuellement en France,142 en Autriche et au Luxembourg,
vingt ans en Grce, au Portugal, au Danemark et aux Pays-Bas, quinze ans en Espagne, dix
ans en Sude et en Finlande. Au chapitre des exceptions ces longueurs traditionnelles, il
faut citer le cas de lAllemagne dont la rforme rcente143 a choisi un dlai de droit commun
de trois ans.
Les rgimes de la prescription tant fort complexes, en dehors du dlai de droit commun,
co-existe une trs grande varit de dlais applicables des domaines donns. Pour ce qui
est des seules crances contractuelles, cela va de cinq ans aux Pays-Bas,144 en France,145
Danemark146 et en cosse,147 voire six ans, comme cest le cas en Angleterre148 et en
Irlande,149 dix ans en Belgique150 et en France en matire commerciale.151
Il nest pas question ici dexpliquer ou de justifier ces variations, ces incohrences de rgime,152 mais simplement de constater la fois le raccourcissement et lunit de dlais
retenus par les Principes europens, justifis ainsi: Le rgime de la prescription doit tre
autant que possible simple et uniforme. Cest pourquoi les Principes ont choisi un dlai de
droit commun qui couvre normalement lensemble des crances qui dcoulent du droit des
obligations.153 Le raccourcissement reflte les tendances internationales et la priode de
trois ans correspond en quelque sorte une moyenne,154 quant lunit, elle vite des
problmes, ventuellement mme des litiges, de qualification et dinterprtation de la
crance ou du contrat lui-mme.
2.2 Selon le Code civil du Qubec
Voir ibid.
En France, [e]n 2004, un groupe de travail prsid par M. Jean-Franois Weber, prsident de la troisime chambre civile de la
Cour de cassation, a recens plus de deux cent cinquante dlais de prescription diffrents dont la dure varie de trente ans
un mois tous domaines confondus. (L. BTEILLE, supra note 104) [En gras dans le texte original].
Alors que lavant-projet de rforme du droit des obligations et de la prescription, remis au Garde des Sceaux en septembre 2005
avait prvu un dlai de droit commun de trois ans, le rapport dpos au Snat recommande de le porter cinq ans. (Idem)
143 Loi portant rforme du code civil allemand (Brgerliches Gesetzbuch - BGB, publi au JO (BGBl. 2001 I S. 3138)), entre en
vigueur le 1er janvier 2002.
144 Pour les dettes contractuelles et pour les dettes priodiques (art. 3:307 et 3:308 BW).
145 Pour les dettes priodiques (art. 2277 C.c.).
146 Pour les crances rsultant dune vente (Loi no 274 du 22 dcembre 1908).
147 Pour la plupart des obligations (Prescription and Limitation (Scotland) Act 1973, art. 6.)
148 Limitation Act, 1980, c. 58, art. 5.
149 Statute of Limitations Act 1957, sect. 11.
150 Art. 2262 bis 1 C.c.
151 L. 110-4 Nouveau Code de commerce.
152 A. BNABENT, supra note 140, 124. Pour des explications, voir J. CARBONNIER, supra note 134.
154 [D]ans un nombre croissant de pays, la plupart des dlais varient entre deux ans et six ans et lopinion prvaut que le dlai de
droit commun doit se situer entre ces ples. (Id., p. 522). En outre, [l]e dlai de trois ans a t retenu par un texte important du
droit communautaire, la directive sur la responsabilit du fait des produits (85/374), art. 10, et il semble quil soit de plus en plus
reconnu comme modle au sein de lUnion europenne. (Id., p. 523.)
Au plan international, le dlai impos par la Convention de la CNUDCI sur la prescription en matire de vente internationale de
marchandises (New York 1974) est de quatre ans (art. 8).
141
142
58
Comparant en 1993 ce qui allait alors devenir les nouvelles rgles du Code civil du Qubec
celles prvues par son prdcesseur le Code civil du Bas-Canada, Franois Frenette
faisait remarquer que155
[s]implicit et clart sont les deux pithtes qui conviennent le mieux pour dcrire le
Titre IIIe du Livre VIIIe sur la prescription. [] la premire disposition du titre vient
dfinir la prescription extinctive dune manire plus ramasse quau Code civil du
Bas-Canada [].
Les autres dispositions du Titre IIIe tmoignent de leffort duniformisation et de
systmatisation poursuivi par le lgislateur en la matire. Les six dlais de
prescription extinctive prsentement reconnus au Code de 1866 sont en effet rduits
trois seulement et la distinction actuellement faite entre le contractuel et lextracontractuel disparat tout simplement.
Le dlai gnral de la prescription extinctive est maintenant de dix ans,156 le dlai applicable aux obligations contractuelles ramen trois ans.157
Quel est leffet de la prescription extinctive en droit qubcois actuel? Autrement dit, la
prescription est-elle de nature substantielle ou procdurale?
Le Code civil du Bas-Canada faisait clairement la distinction entre deux types deffets.
Alors quaux termes de son article 2183, [l]a prescription extinctive ou libratoire repousse ou en certains cas exclut la demande en accomplissement dune obligation ou en
reconnaissance dun droit, lorsque le crancier na pas rclam pendant le temps fix par la
loi, larticle 2267 prvoyait quen certaines matires, [] la crance est absolument
teinte, et nulle action ne peut tre reue aprs lexpiration du temps fix pour la prescription.158 Pour Maurice Tancelin, le premier concernait la sanction du droit, donc relevait de
la procdure, tandis que le second annonait lanantissement du droit lui-mme, et par
consquent touchait la substance.159
Plus synthtique, larticle 2921 Code civil du Qubec nen ressemble pas moins Janus:
La prescription extinctive est un moyen dteindre un droit par non-usage ou dopposer
une fin de non-recevoir une action. Insistant sur la conjonction ou, Maurice Tancelin
en conclut que la prescription est soit un moyen de droit substantif, soit un moyen de
droit procdural.160 Pour certains, en droit civil, seule la notion de dchance emporte extinction du droit lui-mme: En principe, la prescription ne fait quteindre le droit
F. FRENETTE, De la prescription, dans Le Barreau du Qubec et la Chambre des notaires du Qubec (dir.), La rforme du Code
civil, t. 3, Sainte-Foy, Presses de lUniversit Laval, 1993, p. 581.
156 Art. 2922 C.c.Q. Comme dans les Principes europens, le droit rsultant dun jugement est assorti dune prescription dcennale
(art. 2924 C.c.Q.).
157 Art. 2925 C.c.Q. Il existe un autre dlai, auquel les propos rapports de Franois Frenette font allusion mais nous ne nous y
attarderons pas puisquils nont pas de lien avec nos propos. Il sagit de la prescription annuelle en matire de demande de
prestation compensatoire par le conjoint survivant (art. 2928 C.c.Q.) et en matire datteinte la rputation (art. 2929 C.c.Q.).
158 Il sagissait des arrrages de rentes (art. 2250 C.c.B.-C.), et de quelques courtes prescriptions dans des matires varies (art.
2260 2262 C.c.B.-C.).
159 M. TANCELIN, supra note 106, p. 732-735.
160 Id., p. 735-736.
155
59
daction, cest--dire la possibilit pour le crancier de lobligation de demander le

paiement en justice. Par contre, dans le cas des dlais de dchance, ce nest pas seulement
le droit laction en justice qui est perdu. Le dlai de dchance sattaque au droit luimme et lteint.161 Dailleurs, le rle du juge est diffrent dans un cas ou dans lautre: 162
Le tribunal ne peut suppler doffice le moyen rsultant de la prescription.
Toutefois, le tribunal doit dclarer doffice la dchance du recours, lorsque celle-ci
est prvue par la loi. Cette dchance ne se prsume pas; elle rsulte dun texte
exprs.
Alors que la dchance affecte la substance, la prescription serait donc essentiellement de
nature procdurale.163
Toujours est-il quen droit international priv, puisque cest l que la qualification rvle
toute son importance, larticle 3131 du Code civil du Qubec, linstar du droit international priv europen,164 rattache de faon loquente la prescription au fond du litige.165 Sur ce
plan, la parent est forte entre les Principes europens et le droit qubcois.
3. Prescription et autonomie de la volont
Rflchissant au fonctionnement de la prescription extinctive, le doyen Carbonnier estime
que [l]a question de principe est de savoir si ce fonctionnement est sous linfluence de
lautonomie de la volont.166 Si les parties ne peuvent videmment rien contre le temps
qui court, peuvent-elles dcider de son effet? La question peut se poser de diverses faons.
Les unes touchent aux effets mmes de lcoulement du temps. Que peuvent les parties
contre le temps qui va courir, peuvent-elles choisir de lignorer totalement, cest--dire
renoncer a priori ses effets? Que peuvent-elle contre le temps qui a couru, peuvent-elles
convenir de ne pas en tenir compte, soit de renoncer a posteriori ses effets (3.1)?
Baudoin et Jobin, Les obligations, 6e d., par P.-G. JOBIN avec la collaboration de N. VZINA, Cowansville, ditions Yvon Blais,
2005, p. 1118. Mme si ces auteurs crivaient quelques pages auparavant: La prescription extinctive est un mode dextinction
dun droit patrimonial par non-exercice pendant une certaine priode de temps fixe par la loi. (Id., p. 1090.)
162 Art. 2878 C.c.Q. Comme le fait remarquer Maurice Tancelin, cet article qui parle de dchance est une disposition isole dans
le livre mme Des prescriptions []. [Les auteurs de la Refonte] ont fait un amalgame dans la dfinition de la prescription extinctive, 2921 C.c.Q., devenue dans le mme souffle moyen de fond et fin de non-recevoir, sans quon sache comment dmler
lcheveau. Il parle alors de dfinition en forme de fourre-tout. (M. TANCELIN, supra note 106, p. 735).
163 Les discussions sur la nature de la prescription extinctive sont nombreuses. Isabelle Ptel-Teyssi rappelle que [a]rguments
de texte lappui, partisans dune thse substantialiste [] et tenants dune conception processualiste [] se sont dchirs. (I.
PTEL-TEYSSI, Prescription et possession. Prescription: gnralits, Jurisclasseur, Civil Code, fasc. A, para 19.) Outre cet auteur
(id., para 19 24), voir, entre autres, M. TANCELIN, supra note 106, p. 734-736 et M. BANDRAC, La nature juridique de la prescription extinctive en matire civile, Paris, conomica, 1986, en particulier p. 22 52.
164 Convention sur la loi applicable aux obligations contractuelles (Rome, le 19 juin 1980, Doc. 80/934/CEE), art. 10(1)(d). La qualification est identique aux termes de lart. 148 du droit international priv helvtique (Loi fdrale sur le droit international priv
de la Confdration suisse, loi du 18 dcembre 1987).
165 Par consquent, la prescription est rgie par la loi applicable au contrat. La procdure, elle, est rgie par la lex fori, la loi du
tribunal saisi (art. 3132 C.c.Q.).
166 J. CARBONNIER, supra note 134, p. 175.
161
60
Les autres questions concernent plus la quantit de temps au bout duquel il produira un
effet. Les parties peuvent-elles convenir, ds la naissance de leur relation, quelles
arrteront le chronomtre l o bon leur semble, en dautres termes peuvent-elles avoir
une influence sur le dlai de prescription (3.2)?
3.1 Renonciations la prescription a posteriori et a priori
Le Code civil du Qubec, en termes presque identiques ceux du Code civil franais,
interdit de renoncer davance la prescription, mais [permet de] renoncer la prescription acquise et au bnfice du temps coul pour celle commence.167 Mme si, en la
matire, lorganisation des dispositions du Code civil de 1994 diffre de celle du Code de
1866, [l]a matire de la renonciation la prescription nest toutefois pas nouvelle 168 et,
comme sous lempire de lancien code, la renonciation anticipe la prescription est
toujours interdite et sanctionne dune nullit dordre public, alors que la renonciation en
cours de dlai demeure permise parce quelle constitue une cause dinterruption de la prescription.169
Pour rappeler le pourquoi de linterdiction dans une situation et de la permission dans
lautre, il faut se replonger dans les fondements mme de linstitution, dont lun des pres
du Code civil franais, Bigot de Prameneu, a dit que tant ncessaire pour le maintien de
lordre social, elle fait partie du droit public auquel il nest pas libre de droger.170
La prescription extinctive rpond un double objectif, sanction et protection. Dune part,
elle sanctionne linaction prolonge du titulaire du droit,171 le crancier, quelle soit due
la ngligence, [au] dsintressement, [ l]opportunit, [ la] charit,172 en faisant
disparatre son droit.173 Dautre part, elle protge le dbiteur, principalement sur le terrain
probatoire, lcoulement du temps pouvant faire disparatre les preuves de son paiement.
Ainsi, il est possible que le dbiteur se soit dj acquitt de son obligation, mais que le
crancier la lui rclame de nouveau. Plusieurs annes aprs le paiement, le premier risque
dtre dmuni ou dans une position embarrassante, sil ne peut rapporter la preuve du
paiement. Peut-tre, par exemple, a-t-il dtruit la quittance.174 La prescription extinctive a
Art. 2883 C.c.Q. En droit franais, art. 2220 C.c. qui, littralement, ne traite pas de la renonciation au bnfice du dlai en cours.
Tant la jurisprudence que la doctrine ont estim que la prohibition de larticle 2220 devait stendre ce cas prcis. Cependant
une conciliation sest avre ncessaire entre la rgle qui interdit la renonciation anticipe et celle qui permet de reconnatre
tout moment le droit du crancier []. Or, en renonant la prescription en cours, le dbiteur [] reconnat implicitement les
droits de son adversaire. Sa renonciation constitue ainsi une cause dinterruption de la prescription commence. (J.-J. TAISNE,
Prescription et possession. Prescription: mode de fonctionnement, Jurisclasseur, Civil Code, fasc. 20, para. 14.)
168 F. FRENETTE, supra note 107, p. 570.
169 Ibid.
170 P.-A. FENET, Recueil des travaux prparatoires du Code civil, t. XV, p. 577, dans J.-J. TAISNE, supra note 167, para. 12.
171 J.-J. TAISNE, supra note 167, para. 10.
172 Baudouin et Jobin, Les obligations, supra note 161, p. 1090.
173 Et, comme le prcise Isabelle Ptel-Teyssi, non lobligation quil na pas dexercer ce droit. (I. PTEL-TEYSSI, supra note
163, para. 10.)
174 Baudouin et Jobin, Les obligations, supra note 161, p. 1092. Pour le doyen Carbonnier, les dlais de prescriptions rpondent
deux ralits, lune matrielle, lautre psychologique: [] la vitesse de la prescription doit tre, pour partie, fonction de la vitesse
de dprissement des preuves []. La prescription nest pas tant un dlai pour agir et exercer ses droit quun dlai pour ne pas
agir et pour les ngliger. Elle doit convertir en situation juridique une attitude de fait qui ait persist assez longtemps pour tre
symptomatique. Cest donc moins du progrs des communications que dune donne psychologique que doit dpendre sa dure.
(J. CARBONNIER, supra note 134, p. 172.)
167
61
donc une fonction protectrice importante et permettre au dbiteur car, par dfinition, lui
seul pourrait le faire dy renoncer lavance ferait pendre sur sa tte une pe de
Damocls dont il ne serait jamais dbarrass, tant ainsi ternellement oblig. De plus, il y
aurait quelque chose de fondamentalement illogique admettre la renonciation anticipe:
Permettre, en effet, de faire totalement disparatre la possibilit de voir un droit se
prescrire irait lencontre du but mme pour lequel linstitution est cre.175
Au-del de lintrt des parties en cause, la prescription favorise une meilleure administration de la justice par llimination des procs les plus poussireux.176 De mme, de
faon gnrale, il nest pas sain que certaines situations juridiques restent floues ou
incertaines trop longtemps.177
Ordre public et ordre priv participent donc de la prescription. Cela fait dire JeanJacques Taisne que si elles avaient t autorises, les renonciations anticipes
[p]rjudiciables lintrt de celui que la loi entendait protger, [] auraient galement
t contraires lintrt gnral, encourageant la ngligence et lincurie des propritaires
ou des cranciers.178
En revanche, tant en droit qubcois quen droit franais, lautonomie de la volont peut
avoir une influence une fois le dlai entam ou totalement expir, en permettant de
renoncer au bnfice du temps alors coul. Pour Jean-Jacques Taisne, le fondement de la
rgle est ici dordre psychologique, voire moral: ce stade, lordre public cde le pas
lintrt priv, le lgislateur voulant mnager les scrupules [] du dbiteur qui sa conscience dicterait de ne point spolier son adversaire.179
En premier lieu, la libert fondamentale consiste se prvaloir ou non de la prescription. Il
faut pour invoquer la prescription, faire acte de volont.180 Loption repose videmment
sur le bnficiaire, qui peut opposer la prescription en tout tat de cause181 et le juge ne
peut limposer, comme en font foi les articles 2878 al. 1 du Code civil du Qubec et 2223 du
Code civil franais.
En second lieu, outre la renonciation au bnfice de la prescription acquise, soit lorsque le
dlai est chu, ces codes autorisent la renonciation au bnfice du temps pass, avant
mme que le dlai ne se soit compltement coul.182 Cette renonciation constitue, en ce
qui concerne la prescription extinctive, un simple acte abdicatif,183 soit un aveu par [le
Baudouin et Jobin, Les obligations, supra note 161, p. 1121.

J. CARBONNIER, supra note 134, p. 175.
177 Baudouin et Jobin, Les obligations, supra note 161, p. 1094.
179 Id., para 28.
180 Id. para 79.
181 Art. 2881 C.c.Q. et art. 2224 C.c.f.
182 Art. 2883 C.c.Q. En droit franais, art. 2220 C.c.
175
176
62
dbiteur] que la dette est effectivement due.184 Dailleurs, la reconnaissance de dette est
une cause dinterruption de la prescription.185
Que le dbiteur puisse choisir de ne pas invoquer la prescription ou quil ait la libert de
refuser de bnficier du temps dj pass sexplique aisment si lon considre que lintrt
priv lemporte sur lordre public: il semble alors normal de ne pas pouvoir imposer
quelquun de se prvaloir dun bnfice qui lui est consenti.
La renonciation la prescription extinctive en matire dobligations peut tre expresse ou
tacite, la libert de forme tant de mise.186 Dans le second cas, bien sr, le renonant doit
manifester de faon non quivoque lintention dabandonner le secours de cette institution.187
Les Principes europens ne contiennent aucune disposition quivalente aux articles 2883
du code qubcois et 2220 du code franais relatifs la renonciation la prescription
acquise. La seule, qui aborde en termes trs gnraux la question de linfluence des parties
sur la prescription, est larticle 14:601 dont le premier paragraphe prvoit: Les rgles relatives la prescription peuvent tre modifies par accord des parties []. La suite de
larticle indique que les parties peuvent en particulier amnager conventionnellement les
dlais, sujet qui sera abord plus bas.
La lettre du texte suggre que les Principes autorisent tout en matire de prescription. Dun
commun accord, les contractants peuvent en modifier le rgime, changer le point de
dpart [du] dlai, augmenter ou diminuer le nombre des causes de suspension, etc.188 Les
termes du premier paragraphe de larticle 14:601 permettent de croire que les parties
peuvent, entre autres, renoncer au bnfice du temps coul. Cest dailleurs ce que
confirment les commentaires: Lintrt gnral nest pas affect [] par la renonciation
conventionnelle se prvaloir de la prescription.189 Renonciation a priori, a posteriori?
premire lecture, ni les dispositions ni les commentaires napportent de rponse vidente.
Pour ce qui est de la renonciation a posteriori, en assimilant la reconnaissance de dette qui
interrompt la prescription la renonciation au bnfice du temps coul, il faut en
conclure que les contractants soumis aux Principes europens jouissent de cette option. En
ce qui concerne la forme de la reconnaissance de dette, [l]a tendance gnrale du droit du
contrat va dans le sens de labsence de formalisme et bien quici il ne sagisse pas dun document contractuel, aucune raison nimpose dintroduire une condition de forme.190
Baudouin et Jobin, Les obligations, supra note 161, p. 1103.

Art. 2898 C.c.Q. qui amalgame dans une mme disposition, comme cause dinterruption de la prescription, reconnaissance de
droit et renonciation au temps coul. En France, larticle 2248 C.c., lui, ne parle de que reconnaissance de droit par le dbiteur.
186 Art. 2885 C.c.Q.
187 J.-J. TAISNE, supra note 167, para. 62. Les tribunaux franais ont ainsi admis titre de renonciation tacite la prescription le
paiement dacomptes rpts aprs acquisition de la prescription (CA Rennes, 6 oct. 1989: Juris-Data no 1989-047689.).
189 Id., p. 556.
190 Id., p. 549.
184
185
63
Le principe gnral nonc au premier paragraphe laisse croire que les parties peuvent
galement opter pour une renonciation a priori, ce que ne contredisent absolument pas les
commentaires spcifiques sur la prescription. Toutefois, en jonglant avec la suite de
larticle et avec dautres commentaires et dispositions, on peut en arriver une conclusion
oppose.
3.2 Influence sur le dlai

En vertu du premier paragraphe de larticle 14:601, les parties peuvent donc, en
particulier, sentendre sur la dure du dlai de prescription.191 Le principe est encadr par
des limites: (2) Le dlai de prescription ne peut toutefois pas tre rduit moins dun an
ou tendu plus de trente ans []. Les parties ont ainsi la libert de rendre dun commun
accord la prescription plus ou moins difficile, en allongeant le dlai ou en le diminuant.
Sur le continent europen, un tel exercice de la libert contractuelle est reu de faon diverse par les droits nationaux. Cela va de linterdiction totale, en raison du caractre
impratif des rgles sur la prescription, la validit gnrale, en passant par ladmission
des seules clauses facilitant la prescription, soit celles qui en abrgent le dlai, comme cest
le cas en France, par leffet dune jurisprudence ancienne.192
Le raccourcissement du dlai se conoit particulirement bien dans loptique o le dlai de
droit commun est trs long, comme le dlai trentenaire franais, qui favorise plus le
crancier quil ne protge rellement le dbiteur, ce qui, aprs tout, est quand mme lun
des buts de la prescription. Bien loin de contredire les soucis du lgislateur, [les clauses
abrgeant le dlai] favorisent ses desseins: incitant le crancier plus de diligence, elles
permettent au dbiteur dobtenir plus facilement sa libration.193
Il ne faut cependant pas admettre un dlai tellement court quil reviendrait empcher
presque totalement le crancier dagir. Cest pourquoi une limite infrieure est impose,
gnralement tablie au cas par cas par les tribunaux. ce chapitre, la partie faible, celle
que lon entend protger, nest pas toujours celle que lon pense. Ainsi, en France, dans la
premire moiti du XXe sicle, le pril avait chang de camp et [], dans des contrats
dadhsion, des dbiteurs tout-puissants pouvaient imposer leurs cranciers des prescriptions conventionnelles dune brivet captieuse. Le lgislateur a d intervenir pour
prohiber ces clauses abrviatives l o labus en avait t particulirement criant, dans le
contrat dassurance.194
Il convient de rappeler quen vertu de larticle 14:201, le dlai de droit commun pour les crances est de trois ans.
Civ. 4 dc. 1895, D.P. 1896. 1. 241 (2e esp.), note Sarrut. Sur la varit des solutions nationales, voir G. ROUHETTE, supra note
113, p. 556-557.
Larticle 2235 de lavant-projet franais dispose que [l]a dure de la prescription extinctive peut tre abrge ou allonge par
accord des parties [], la dure ne pouvant aller en de dun an ni au-del de dix ans. Lexercice de la libert contractuelle en
cette matire est totalement interdite dans le cadre des contrats dassurances et des contrats de consommation.
194 J. CARBONNIER, supra note 134, p. 176.
191
192
64
En ce qui concerne les accords allongeant les dlais, ils peuvent intervenir diffrents
stades de la relation contractuelle. Pour ceux qui sont initiaux, qui interviennent au moment de la conclusion du contrat, en France, par exemple, leur nullit actuellement ne
connat aucune exception [].195 En effet, surtout si le dlai de droit commun est de trente
ans, aller au-del reviendrait supprimer totalement la possibilit de prescrire. Dun autre
ct, les parties peuvent souhaiter, en cours de dlai, le modifier pour en repousser le
terme. La situation est admise en droit franais dans la mesure o la jurisprudence a
constat que le plus gnralement laccord en cause a pour objet, non pas de supprimer la
possibilit de prescrire, mais seulement de suspendre le cours du dlai,196 ce qui est le cas,
par exemple, lorsque les parties attendent une dcision juridictionnelle ou arbitrale vidant
un litige []197 ou quelles octroient au dbiteur un sursis pour lexcution de ses obligations.
Actuellement, pour un juriste qubcois, la question de linfluence de la volont des parties
sur les dlais de prescription ne se pose mme pas. Larticle 2884 du Code civil ne souffre
aucune interprtation possible: On ne peut convenir dun dlai de prescription autre que
celui prvu par la loi. La disposition est dordre public. Selon Franois Frenette, [p]our le
lgislateur, allonger ou raccourcir un dlai par convention constitue en fait une drogation
indirecte larticle 2883 C.c.Q.198
La rgle est gnralement prsente comme de droit nouveau.199 Commentant ce qui allait
devenir larticle 2882 C.c.Q., lOffice de rvision du Code civil indiquait: 200
Cet article est nouveau. Dans ltat actuel du droit, il nest pas certain quil soit
permis aux parties de convenir dun dlai plus court que celui qui est prvu par les
dispositions du Code civil []. Lon a cru ncessaire dnoncer, pour les fins
duniformisation et de scurit dans les transactions, que les dlais de prescription
soient considrs comme tant dordre public et quon ne puisse ds lors
conventionnellement les modifier.
Ces propos, tenus dans loptique de la dfense des intrts du crancier, suivent en ligne
directe une dcision de 1973 de la Cour provinciale o le juge avait annul une clause
rduisant un an le dlai daction en matire dassurance. De faon gnrale, le juge stait
indign contre les stipulations modifiant le dlai lgal de prescription: Lon peut imaginer
le chaos qui rgnerait si, contrairement au vu du lgislateur et lencontre de lintrt
J.-J. TAISNE, supra note 167, para. 23.

Id., para 26.
197 Id., para 27.
198 F. FRENETTE, supra note 107, p. 571. Pour mmoire, larticle 2883 C.c.Q. est celui qui interdit la renonciation lavance de la
prescription.
199 Voir ibid. et Baudouin et Jobin, Les obligations, supra note 161, p. 1121. Il faut rappeler que le Code civil du Bas-Canada ne
comportait aucune disposition sur le sujet.
200 Office de rvision du Code civil, Rapport sur le Code civil du Qubec, Commentaires, t.2, vol. 2, Qubec, diteur officiel, 1977, p.
924.
195
196
65
public, un justiciable pouvait imposer ses adversaires le dlai de prescription de leurs

recours.201
Si tout le monde sentendait pour proscrire lallongement du dlai, le droit ne semblait pas
rellement fix en ce qui concernait son abrgement, comme le rapporte le ministre de la
Justice, au moment de lentre en vigueur du Code civil du Qubec: 202
Dans le pass, il tait gnralement admis quon ne pouvait prolonger le dlai requis
pour prescrire, car cet t, dune manire dtourne, renoncer au bnfice de la
prescription. Il aurait suffi de fixer, par convention, le terme au-del de la dure
normale dune vie humaine pour ter toute utilit la prescription et, ce faisant, nier
lintrt gnral, fondement de la prohibition de larticle 2883. Il ntait cependant
pas certain que les parties ne puissent pas convenir dun dlai de prescription plus
court que celui qui tait prvu par les dispositions du Code civil.
lheure actuelle, les termes du Code civil mettent dfinitivement fin au dbat.203
Pour en revenir aux Principes europens, la lecture combine du premier alina de larticle
14:601 et du deuxime, accompagne de celle des commentaires risque, dans un premier
temps, de plonger le juriste et que dire des destinataires premiers des Principes, les
contractants? dans des abmes de perplexit. En effet, alors que les parties semblent
autorises renoncer totalement la prescription, mme a priori, si elles ne le font pas,
elles ne peuvent dpasser certaines limites, minimale et maximale. Autrement dit, ou bien
elles excluent tout dlai de prescription ou bien elles ny renoncent pas, auquel cas, leur
libert contractuelle ne peut sexercer que dans un cadre contenu entre un an et trente ans.
la rigueur. Cependant, des exceptions ou des limites un principe gnral se doivent
dtre prcises. Par dfinition, elles ne peuvent, elles aussi, tre gnrales! Ainsi, des
balises peuvent se justifier ratione personae ou ratione materiae. Encore faut-il que le
texte ou le contexte le laisse entendre, ce qui nest pas le cas ici. De prime abord, la logique
semble prsenter une faille entre le premier et le deuxime paragraphe de larticle 14:601.
La solution cette nigme est apporte par une tude attentive des commentaires. Il faut
revenir la prsentation introductive des Principes et en particulier celle qui en expose
une vue densemble pour y apprendre que larticle 14:601(2) sur les dures maximale et
minimale du dlai de prescription fait partie des dispositions impratives.204
Cest donc dire quil faut lire larticle 14:601 de la faon suivante: les parties, en vertu des
termes liminaires du premier paragraphe, jouissent dune trs grande libert en matire de
Levis Woodoor c. Zurich, compagnie dassurances, [1973] R.P. 228 (C.P.), p. 229.
Code civil du Qubec Commentaires du ministre de la Justice et Loi sur lapplication de la rforme du Code civil du Qubec
(extraits), Montral, Dacfo, 1993, p. 949. Cest galement ce que constatait Pierre-Basile Mignault au dbut du sicle dernier (P.-B.
MIGNAULT, Le droit civil canadien, t.9, Montral, Wilson & Lafleur, 1916, p. 340.)
203 La rgle interdisant la modification du dlai par les parties a peut-tre t introduite la fois en raison du raccourcissement du
dlai lgal et du fait que cette relative brivet convient, aux yeux du codificateur, toutes les situations.
204 Voir G. ROUHETTE, supra note 113, p. 27. Lutilisation du verbe pouvoir la forme ngative (Le dlais de prescription ne peut
toutefois tre rduit [] ou tendu []) nest pas probante en soi quant au caractre impratif puisque dautres articles
lutilisent parfois sans pour autant tre taxs dimpratifs par les commentateurs.
201
202
66
prescription, libert qui leur permet den amnager conventionnellement le rgime comme
bon leur semble. Une fois ce principe admis, en ce qui en concerne spcifiquement le dlai,
soit les parties sont silencieuses, auquel cas le dlai gnral de trois ans sapplique, soit
elles ltablissent conventionnellement dans les limites impratives prescrites par le
deuxime paragraphe. Puisquelles sont obligatoirement soumises un dlai, il faut en
dduire que toute renonciation pralable la prescription est interdite.205
Le moins que lon puisse dire, cest que lensemble des propos disposition et
commentaires relatifs la libert contractuelle en matire damnagement conventionnel
du rgime de la prescription et de dlai manque de limpidit. Il serait peut-tre souhaitable
denvisager une rcriture de larticle.et une rvision de certains commentaires!
Deux options sont possibles. Ou bien on prive les parties de toute possibilit de renoncer a
priori la prescription:
(1) Les rgles relatives la prescription peuvent tre modifies par accord des
parties. Cependant, en aucun cas, les parties ne peuvent renoncer davance la
prescription.
(2) Les parties peuvent en particulier abrger ou allonger les dlais.
(3) Le dlai de prescription ne peut toutefois pas tre rduit moins dun an ou
tendu plus de trente ans.
Ou bien on privilgie lexercice le plus complet de la libert contractuelle puisque, aprs
tout, comme ladmettent les crateurs des Principes europens, il faut [] se rappeler que
la prescription libratoire doit surtout servir protger le dbiteur et que si celui-ci
renonce cette protection, on peut faire prvaloir lautonomie prive sur lintrt public.206 La disposition pourrait tre ainsi conue:
(1) Les rgles relatives la prescription peuvent tre modifies par accord des
parties qui peuvent en particulier abrger ou allonger les dlais.
(2) Dans la mesure o les parties dcident de convenir dun dlai, il ne devrait pas
tre rduit moins dun an ou tendu plus de trente ans [].
Ainsi, la libert contractuelle pourrait sexercer et au cas o les parties ne renonceraient
pas davance la prescription, le deuxime paragraphe donnerait un sens leur choix, en
empchant par exemple le dbiteur de se croire protg par un dlai qui, sous couvert
dune clause tablissant un dlai trs long, ne permettrait pas dans les faits que le droit soit
prescrit.
Cette lecture semble confirme par une explication sur la limite suprieure du dlai: il ne faut pas que le dbiteur puisse accepter une clause portant le dlai cinquante ou cent ans car cela reviendrait exclure la prescription. (G. ROUHETTE, supra
note 113, p. 556.)
206 Id., p. 555.
205
67
Pour terminer, on ne peut sempcher de comparer les Principes europens avec les
Principes labors par Unidroit,207 indiscutablement plus clairs sur la question du jeu
accord aux parties en matire de prescription. Aux termes de ces derniers, les parties ne
peuvent absolument pas en amnager le rgime leur guise. La seule latitude qui leur est
accorde porte sur les dlais, dont elles peuvent dterminer la dure conventionnellement,
mais uniquement entre deux extrmes.208
4. Consquences de la libert contractuelle en matire de dlais
Mme sil tait rdig en des termes plus clairs, larticle 14:601 ne serait toutefois pas sans
danger, notamment parce que, au chapitre de la prescription, [l]es rgles [] reposent sur
un quilibre dlicat entre les intrts en prsence [].209 Lquilibre est parfois si dlicat
quil peut tre rompu, en particulier par lexercice de la libert contractuelle. Or, en matire
contractuelle, dsquilibre risque daller de pair avec abus.
La clause prvoyant le dlai de prescription pourrait-elle constituer une clause abusive?
Les propos qui vont suivre ne sattacheront pas la qualit des contractants,
consommateurs ou professionnels. La question de la protection des seuls consommateurs
aurait pu se poser puisque le grand texte europen en la matire, la Directive europenne
sur les clauses abusives,210 ne concerne queux. Mais avant de la transposer, 211
de nombreux droits avaient dvelopp un contrle judiciaire des clauses abusives,
qui ntait pas limit aux contrats passs avec les consommateurs et qui continue en
grande partie sappliquer. Dautre part, de nombreux tats ont une lgislation sur
les clauses abusives, particulirement celles qui figurent dans les conditions
gnrales, qui sapplique mme quand aucune des parties nest un consommateur.
Larticle 4:110 des Principes europens, qui, il faut sen souvenir, rgissent tous les
contrats,212 prvoit une protection contre les clauses abusives mais ne la limite pas un
seul type de contractant. Dailleurs, il ne fait aucunement rfrence la qualit des parties,
sattachant uniquement au mode de conclusion du contrat ou du moins, aux conditions
dans lesquelles une clause a t insre dans le contrat, comme le rvle clairement son
intitul: Article 4:110: Clauses abusives qui nont pas t lobjet dune ngociation
individuelle. En cela, la disposition rappelle larticle 1437 C.c.Q. qui protge non
seulement le consommateur mais galement ladhrent contre les clauses abusives.
Les Principes Unidroit (Principes dUNIDROIT relatifs aux contrats du commerce international 2004, [en ligne]
<http://www.unidroit.org/french/principles/contracts/main.htm> [consult le 2 juin 2008]), sont de la mme nature que les
Principes europens, cest--dire quils constituent eux aussi une sorte de codification prive dans le domaine des contrats mais
les deux diffrences majeures avec les Principes europens sont quils ne sont applicables que dans les relations entre
professionnels et quils ne sont pas limits aux relations europennes.
208 Art. 10.3. Le dlai minimal est dun an, le maximal de quinze.
209 G. ROUHETTE, op. cit. note 113, p. 538.
210 Directive 93/13 du 5 avril 1993, JOCE 21 avril, L. 95/29. [Ci-aprs Directive europenne]
211 G. ROUHETTE, op. cit. note 113, p. 430.
212 Donc entre professionnels (ce que dans le commerce lectronique, on appelle B to B), entre professionnels et particuliers (B to
C), voire mme entre particuliers uniquement (C to C).
207
68
Il ne sagit pas non plus ici de discuter du fait que la clause a ou non t ngocie 213 sauf
pour signaler que, contrairement au Code civil du Qubec, le texte de larticle 4:110 ne
prvoit pas que lensemble du contrat soit dadhsion.
Les Principes europens dfinissent la clause abusive de faon trs classique, reprenant
dailleurs lidentique la notion de clause abusive telle que dfinie par la directive
[europenne].214 Il sagit de la clause qui, contrairement aux exigences de la bonne foi
cre au dtriment dune partie un dsquilibre significatif entre les droits et obligations
des parties dcoulant du contrat, eu gard la nature de la prestation procurer, de toutes
les autres clauses du contrat et des circonstances qui ont entour sa conclusion. Alors que
la Directive europenne donne, en annexe, une liste non exhaustive de clauses pouvant tre
considres comme abusives et que le Code civil du Qubec, lalina 2 de larticle 1437, en
fournit un exemple, aux dires du ministre de la Justice,215 les Principes europens ne
comportent que des indications ngatives qui quivalent exclure des clauses
ventuellement abusives celles qui sont essentielles.216
Un auteur franais dplore que les Principes europens aient repris, sans les claircir, les
expressions de la Directive europenne contrairement aux exigences de la bonne foi et
dsquilibre significatif. voquant leur articulation, il conclut: [] une superposition de
flous ne fait pas une image nette. Il est regrettable que les Principes Lando naient pas jug
ncessaire de procder une mise au point.217 La notion de clause abusive et, plus
largement dabus contractuel, fourmille tant de difficults que ce mme auteur leur a
consacr sa thse de doctorat.218 Il y fait notamment ressortir deux sries de problmes,
lis labus de la libert contractuelle, particulirement pertinentes ici.
En premier lieu, comment comparer ce qui est difficilement comparable, les droits de lune
des parties et les obligations de lautre de faon dterminer sils prsentent un
dsquilibre significatif? Pour Philippe Stoffel-Munck,219
[]valuer, mme approximativement, lquilibre entre deux choses suppose quexiste
au moins entre ces objets un talon de comparaison. Autrement dit, lexistence dune
unit commune de mesure est indispensable: on compare ainsi des kilos avec des
kilos, des mtres avec des mtres, etc.
Sur les difficults de preuve de la ngociation, voir P. STOFFEL-MUNCK, Article 4:100 Clauses abusives qui nont pas fait
lobjet dune ngociation individuelle dans C. PRIETO, supra note 119, 273, p. 276-277.
214 Id., p. 274.
215 Code civil du Qubec Commentaires du ministre de la Justice et Loi sur lapplication de la rforme du Code civil du Qubec
(extraits), op. cit. note 202, p. 479. En ralit, il sagit plus dun critre permettant dvaluer le caractre abusif de la clause que
dune illustration en tant que telle.
216 Le prsent article ne sapplique pas
(a) une clause qui dfinit lobjet principal du contrat, pour autant que la clause est rdige de faon claire et
comprhensible,
(b) ni ladquation entre la valeur respective des prestations fournir par les parties.
La prcision est ncessaire afin de faire la diffrence entre clause abusive et lsion, qui, elle, semble envisage larticle 4:109.
217 P. STOFFEL-MUNCK, supra note 213, p. 279. [Comme le professeur de Copenhague est en quelque sorte le pre des Principes,
plusieurs les appellent les Principes Lando.]
218 P. STOFFEL-MUNCK, Labus dans le contrat. Essai dune thorie, Paris, L.G.D.J., 2000.
219 Id., p. 340. Ainsi, il se demande comment valuer, comment chiffrer, avec un minimum dobjectivit, lavantage que [procure
une clause] permettant la modification unilatrale des horaires douverture dun club sportif. (Ibid.)
213
69
Concernant les droits et obligations des parties, on ne voit pas quexiste dautre
talon de mesure que la monnaie.
Le dsquilibre peut cependant se situer sur un autre terrain, purement juridique: la
clause confre des droits une partie et non lautre.220 La comparaison, ici, ne relve ni
de limpossibilit ni de la prouesse. Ainsi, il semble vident que rien ne soppose ce
quune renonciation pralable la prescription puisse tre tenue pour abusive. Le
dsquilibre entre le crancier pouvant ternellement faire valoir son droit et le dbiteur,
par voie de consquence, ne pouvant jamais tre libr est patent. De mme, le dlai choisi
par les parties, bien que contenu dans les limites prvues par le deuxime alina de larticle
14:601, pourrait, dans certaines circonstances, savrer abusif, quil soit trs long ou trs
bref.
Cest ici quapparat la seconde srie de difficults, voque par Philippe Stoffel-Munck:221
Il existe deux manires de proscrire une clause abusive. La qualification peut tre
abstraite et gnrale, et vise alors extraire du champ de la libert contractuelle la
clause juge trop excessive pour jamais tre juste. [] Mais la qualification peut
aussi se faire concrte et relative, ne plus raisonner partir de modles de
convention mais sur la convention particulire loccasion de laquelle le litige sest
nou.
Autrement dit, ou bien telle catgorie ou tel type de clause sera systmatiquement
considr comme abusif et cest le cas envisag, par exemple, par la liste de clauses
contenue lannexe de la Directive europenne ou bien une clause, en soi, nest pas a
priori rprhensible mais risque de le devenir au regard de lquilibre particulier dun
contrat particulier.222
La premire hypothse est partiellement exclue de la prsente analyse puisque les
Principes europens, accordant aux parties la libert de convenir dun dlai, considrent,
cela va sans dire, la clause comme juste.223
La seconde hypothse ncessite une qualification concrte de la clause qui dpend []
des variables factuelles de la convention. Lapprciation de lquilibre est individualise,
concrtise par linclusion dlments de fait propres lespce.224 Ce faisant, [o]n ne
rglemente plus, on narbitre plus le conflit dintrts entre des classes de contractants, on
tranche un cas marginal qui nest pas amen se rpter. La solution ne dcoule plus dune
analyse abstraite dune convention-type ou dune clause-type, elle se justifie au regard de
lquilibre particulier dun contrat particulier.225 Le problme vient ici de la personne sur
qui repose lapprciation. Habituellement, la tche revient lautorit charge de trancher
G. ROUHETTE, supra note 113, p. 229.
P. STOFFEL-MUNCK, supra note 218, p. 375.
222 Id., p. 381.
223 En revanche, il semble, dans ltat actuel des choses, quils considrent la clause de renonciation pralable comme injuste.
224 P. STOFFEL-MUNCK, supra note 218, p. 383. [Les italiques sont dans le texte original.]
225 Id., p. 381.
220
221
70
le diffrend: On entre dans le domaine naturel du juge qui, soccupant dun cas prcis, va
jauger lquilibre particulier du contrat en cause et dcider den supprimer telle ou telle
stipulation, sans que cela prjuge pour lavenir.226 Philippe Stoffel-Munck ajoute:
Lapprciation concrte de labus relve de lquit au sens exact que lui donne une partie
de la littrature juridique, qui renvoie non seulement une ide dquilibre et de
modration, mais aussi dapprciation individuelle et ponctuelle. [] Il faut donc sen
remettre au sens individuel de la justice qui anime le magistrat.227 Lvaluation par un tiers, extrieur la relation contractuelle, ne surprend pas, une partie pouvant
difficilementtre juge et partie.
Or, dans le cadre des Principes europens, lintervention judiciaire ou arbitrale est
limite au maximum. Ce sont les parties elles-mmes, la victime, vrai dire, qui a droit de
vie et de mort sur le contrat ou sur certaines de ses stipulations et ce, par un processus trs
simple. Ainsi, en matire de validit, une partie peut provoquer la nullit du contrat pour
les causes classiques.228 Elle peut galement le rsoudre pour inexcution229 ou rsilier un
contrat dure indtermine.230 Et la victime dune clause abusive peut annuler celle-ci.231
Une simple communication au vis--vis, sous forme de notification, suffit: Lannulation a
lieu par voie de notification au cocontractant.232
L encore, le principe peut drouter un civiliste puisque tant le droit qubcois que le droit
franais, par exemple, subordonnent [] lannulation du contrat une action en justice.233 Au contraire, ici, tout se passe en vase clos: point nest besoin davoir recours une
autorit extrieure, tatique ou prive, afin quelle se prononce ou quelle officialise la rupture entre les contractants. La victime indique son mcontentement son cocontractant
qui, videmment, peut ragir et prendre les moyens ncessaires pour sauver le contrat ou
la partie du contrat en danger234. Sil ne le fait pas, le contrat ou la clause litigieuse sont
anantissans autre forme de procs, pourrait-on dire. On peut cependant accepter quil
en soit ainsi dans les matires couvertes par les Principes europens o il est certainement
ncessaire de prvoir des rgles souples et efficaces pour faciliter la vie des affaires.235
Id., p. 375.
Id., p. 383.
228 Erreur, art. 4:103, dol, art. 4:107, contrainte, art. 4:108, profit excessif proche parent de la lsion , art. 4:109.
229 Art. 9:301 et art. 9:302.
230 Art. 6:109.
231 Art. 4:110.
232 Art. 4:112. La notification na pas tre faite dans une forme particulire et la thorie de la rception prvaut en la matire
(Voir art. 1:303.)
233 E. PUTMAN, Article 4:112. Annulation par notification, dans C. PRIETO supra note 119, 288.
Bien sr, en vertu des Principes europens, les actes unilatraux et non judiciaires anantissant le contrat en partie ou en entier
nexcluent pas tout recours aux tribunaux, judiciaires ou arbitraux, ne serait-ce que pour obtenir des dommages intrts, soit en
plus de lannulation, soit au lieu et place dune telle mesure (M.-. PANCRAZI, Article 4:117Dommages et intrts, dans C.
PRIETO supra note 119, 300, 301.) Voir art. 4:117 et 9:501 et s.
Il faut remarquer au passage que si le tribunal est appel intervenir moins souvent que cela nest habituel, lorsquil le fait, il a un
pouvoir gnralement ignor par le droit, du moins par le droit qubcois et par le droit franais. En effet, en cas de profit
excessif ou avantage dloyal, lart. 4:109 (3) autorise le juge adapter le contrat.
234 Voir, par exemple, larticle 4:105.
235 J. CAIRON, Article 4:105. Adaptation du contrat dans C. PRIETO supra note 119, 254, p. 255.
226
227
71
Aux yeux dun juriste qubcois, les clauses abusives et leur sanction prsentent dailleurs
une particularit en droit europen en raison de la Directive et de sa transposition dans les
lgislations nationales. En droit franais, par exemple, tant rputes non crites,236 ces
clauses font lobjet de nullit de plein droit ou nullit premptoire. Dans ce cas, si
ncessaire, le juge na thoriquement pas de pouvoir dapprciation car il est cens se
borner les constater [].237 Se penchant sur la technique dannulation par notification
prvue larticle 4:112 des Principes europens, un auteur estime que cet article ne devrait
pas jouer dans les cas de nullit premptoire et dplore justement que les clauses abusives
ne soient pas exclues de son champ dapplication.238
Ceci amne sinterroger plus globalement sur les sanctions des clauses abusives lorsque
lvaluation du caractre abusif est laiss lapprciation des parties.
La difficult provient du fait quil est justement extrmement difficile dtablir de faon
tranche ce qui constitue un abus et que ou parce que lapprciation en est
particulirement subjective. Le sentiment dabus ayant par dfinition une charge
symbolique, passionnelle et moralisatrice239, le recours la notion servant exprimer
une rvolte et non point un jugement,240 comment sattendre ce que celui qui sen estime
victime juge lucidement de la situation et lui permettre de se faire justice soi-mme? Il y a
incompatibilit fondamentale entre le mal et le moyen pour y remdier.
Permettre aux parties dannuler elles-mmes des stipulations ou des termes abusifs ne
peut se concevoir que dans la mesure o elles ont leur disposition un guide leur
permettant dvaluer ou de vrifier sil y a abus, comme cest le cas de la liste dexemples
contenue lannexe de la Directive europenne. Formellement, les Principes europens ne
prvoient rien de tel, notamment parce que [d]ans les contrats entre professionnels, une
liste de clauses abusives per se est gnralement considre comme tant impossible en
raison de la diversit des contrats commerciaux.241 Les commentaires indiquent que lon
peut cependant sinspirer242 de la liste fournie par la Directive europenne. Lincitation
nest pas bien vigoureuse ni trs contraignante!
De faon gnrale, les Principes europens tendent exclure le recours lautorit
judiciaire ou arbitrale pour laisser les parties rgler leurs diffrends entre elles, au mieux
de leurs intrts. Toutefois, on peut craindre quau lieu de rduire le nombre de dbats
judiciaires ou arbitraux, la possibilit laisse la victime dannuler unilatralement une
clause quelle juge abusive nengendre une prolifration de recours.243
Art. L. 132-1 Code de la consommation franais. En droit qubcois, en vertu de lart. 1437 C.c.Q., la clause abusive est nulle.
E. PUTMAN, supra note 233, p. 289.
238 Voir ibid. Plutt que dtre annulables, ce qui ncessite une notification au cocontractant, lauteur aurait prfr quelles
soient rputes non crites, donc sans effet.
239 P. GOD, Observations sous le dcret no 78-464 du 24 mars, RTDC 1978, 744, 746.
240 Ibid.
241 G. ROUHETTE, supra note 113, p. 226-227.
242 Id. p. 227.
243 Et ce, mme dans les cas o la partie qui annule la clause est de bonne foi.
236
237
72
Originalit et ambigut sont les deux termes qui viennent lesprit la lecture de larticle
des Principes europens portant sur la libert des parties en matire de dlais de prescription extinctive. Originalit, au moins pour un juriste qubcois, dont le droit interdit tout
amnagement contractuel dans ce domaine. Originalit galement et risque de confusion
-- en ce qui a trait lanantissement dune clause tablissant un dlai de prescription que
lune des parties estimerait abusive, la victime jugeant elle-mme du caractre abusif et
notifiant simplement son cocontractant le biffage de la clause qui lui aurait t impose.
Quant lambigut, elle est souvent provoque par les commentaires qui se contredisent
ou contredisent les dispositions. La question de la nature de la prescription en est un bon
exemple. En ce qui concerne les accords relatifs la prescription, lambivalence rgne
galement, due la formulation vague de larticle 14: 601 et aux propos incertains des
rdacteurs. Lensemble parat, de faon gnrale, accorder aux parties une trs grande
libert puisque le tout laisse sous-entendre quelles peuvent renoncer a priori la prescription une autre originalit! mais dans le mme souffle, le texte impose des limites au
dlai de prescription. Il faut presque mener un travail de dtective pour donner un sens
la rgle et finalement conclure que toute renonciation pralable est proscrite. Il est
dommage quun tel dcryptage soit ncessaire pour un texte dont la formulation est de
nature procurer de nombreux avantages.244
Dautres difficults, non voques ici, semblent poindre lhorizon, dans le domaine des
relations transnationales. En particulier, on peut se demander comment serait reu cet
amnagement contractuel du dlai de prescription par lautorit dun ordre juridique qui,
comme cest le cas au Qubec, revt le dlai lgal du caractre dordre public. Et, problme
plus complexe, comment rgler la question de lopposition entre la libert contractuelle
accorde par les Principes europens et lapplication ventuelle au contrat dune loi qui
linterdirait? Ceci pourrait certainement faire lobjet dune autre tude.
244
G. ROUHETTE, supra note 113, p. 21.
73

DOI: 10.989765/2016.5.502
JUDICIAL REVIEW UNDER THE IRISH CONSTITUTION:

MORE AMERICAN THAN COMMONWEALTH
Seamus OTuama*
Introduction
The Irish legal system emerged from the British system. Yet the Irish constitution diverges
from the Commonwealth model and more closely resembles the American constitution in
both substance and application. This means that while the Irish parliamentary system is
very much based on the Westminster model, the legal system, while remaining within the
Common Law family, has important distinctions. One of the key areas of divergence from
the Commonwealth model is in judicial review. This has important ramifications for the
recognition and elaboration of human rights under the constitution. This article explores
some of the historical reasons for the shift from the Commonwealth model and the nature
and consequence of some of those differences. It also contrasts certain aspects of the Irish
judicial review process with those pertaining in the United States; in particular it highlights
some anti-democratic tendencies in the Irish system.
The emergence of Judicial Review under the Irish Constitution
The new Irish constitution of 1937, or Bunreacht na hireann, made a fundamental move
away from the British constitutional model of parliamentary primacy. Its predecessor the
Irish Free State Constitution was a child of the British parliament and was framed in the
context of the British experience. When framing the new constitution amon de Valera245
may have been influenced more by a wish to break the colonial link than in giving reign to
* Dr OTuama is Senior Lecturer at the Department of Government, University College Cork, Cork, Ireland.
245 amon de Valera as Irish Prime Minister (Taoiseach) personally engaged in the drafting of a new constitution to set his stamp
on the fledgling state (see Brian Farrell(ed) (1988) De Valeras constitution and ours, Dublin: Gill and Macmillan).
74
the judiciary, steeped as he was in a conservative tradition. It is likely that his view of the
separation of powers resembled those of Alexander Hamilton in Federalist 78, where he
envisaged the judiciary as properly the weakest of the three branches of government. This
would deny the potential for strong judicial review as the authority which can declare the
acts of another void, must necessarily be superior to the one whose acts may be declared
void.246
Looking at Judicial Review in American history from the early 20th century one might be
tempted to assume that the current form of judicial review existed from the beginning, but
as Wolfe points out it is not the case. Wolfe divides the development of judicial review under the American constitution into two distinct genres, covering three periods.247 He terms
these genres as traditional and modern, the first to some degree can be likened to
Tushnets description of weak judicial review and the modern to strong judicial review
although they are not identical.248 The first period, during which the traditional model was
in the ascendancy, covered the time from the adoption of the constitution up till the end of
the Civil War. The modern period in Wolfes view emerged from 1937, with the intervening
70 years or so being a period of transition.
In terms of de Valeras project, it can be assumed that as he was working before the true
emergence of the modern or stronger tradition of judicial review, he could not have anticipated its potential impact for his constitution. However the Irish Constitution contains explicit measures for judicial review in Articles 26 and 34, thus the seeds were sown by de
Valera, which would allow for the emergence of strong judicial review along American
lines, but confined to the superior courts. The transition in Irelands case was foreshortened; the period of transition was just two decades. The Irish Constitution operated entirely within the compass of the modern genre in the United States, mediated by the younger
judges who pushed out the frontiers of judicial review, drawing on their own knowledge
and experience of the American model. It may not have been as critical in terms of influence, but it is worth noting that the postwar German federal constitution also assumed a
strong judicial review approach. It is clear that in both the American and the Irish cases
there was a transition from a weaker form to a stronger form. To the point where the
courts have general authority to determine what the Constitution means the courts constitutional interpretations are authoritative and binding on the other branches, at least in
the short to medium run.249
Weber makes some interesting observations on judicial review or what he calls JudgeMade Law. He points out that a judge will feel obliged in subsequent cases to reiterate a
maxim used in order to avoid a charge of bias for changing the norm on which his/her de-
Hamilton, Alexander (1788) The Federalist No. 78 The Judiciary Department Independent Journal, Saturday, June 14, 1788.
Wolfe, Christopher (1981) A Theory of U.S. Constitutional History The Journal of Politics, Vol. 43, No. 2. (May, 1981), pp. 292316.
248 Tushnet, Mark (2003) Alternative Forms of Judicial Review, Michigan Law Review, Vol. 101, August 2003, 2781-2802.
249 Ibid, p. 2784.
246
247
75
cision was made. There is also a tendency for judges to follow each other in a similar
vein:250
The more stable the tradition, the more the judges will depend on those maxims which
guided their predecessors, because it is just then that every decision, regardless of how it
came into existence, appears as being derived from the exclusively and persistently correct
tradition.
This in Webers words is a pattern that lays claim to permanent validity. We can see this
trend in two aspects of judicial review under the Irish Constitution. The first is the gestation period from the adoption of the constitution to the emergence of the type of strong or
modern judicial review which subsequently emerged. The break with the British model and
the move to what might be described as the American model emerged with a new generation of judges who had greater exposure to the workings of the US Constitution. The second point of note is that there then emerges an Irish tradition.
While the first point led to a new wave of judicial activism, the second may in time lead to
stultification through a desire to sanctify the tradition as it were. This latter trend is likely
due to Webers account of the nature of the work of legal professionals vis--vis the making
of law. He holds firmly to the view that professional jurists hold a pre-eminent role in the
shaping of law, but that their innovation is, by the nature of their profession, bounded. He
states that: prophets are the only ones who have taken a really consciously creative attitude towards existing law.251 On the other side he places a clear limitation on the advances
wrought through the activities of legal professionals, due to their role as interpreters rather than creators, even those jurists who, from an objective point of view, have been the
most creative ones... regarded themselves to be but the mouthpiece of norms already existing.252
This perspective casts a less positive and dynamic light on the possibilities of original innovation arising through judicial review. This is a more contentious position than Weber
might have imagined as judicial review in the modern or strong form has come more to the
fore only in the generations after his death.
Both Gardbaum and Tushnet offer interesting insights on how constitutions and or constitutional traditions establish strong or weak forms of judicial review. Gardbaum makes the
point that strong forms of judicial review became the norm from 1945 in an attempt to
safeguard the rights of citizens from the excesses of their own governments.253
Delany writing in 1957, before the full flowering of judicial review under the Irish Constitution, provides a keen insight into how judicial review was then considered by the Irish judiWeber, Max (1978) Economy and Society (Volume 2). Roth, Guenther & Wittich, Claus (Eds.) Berkeley: University of California
Press, p. 759.
251 Ibid, p. 894.
252 Ibid, p. 894.
253 Gardbaum, Stephen (2001) The New Commonwealth Model of Constitutionalism American Journal of Comparative Law, Fall,
2001, 49, 707-760. p. 714-5.
250
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ciary and the trends he saw emerging. The first point he makes is that the judges then on
the bench had been trained, in the main, in an atmosphere of unlimited parliamentary
sovereignty254 He also notes that surprisingly few constitutional cases had come before
the courts, notwithstanding an express power of review, concluding that the idea is an
unfamiliar one, but he nonetheless detects the beginnings of change.255 His discussion on
the National Union of Railwaymen and Others v. Sullivan case in the High Court and especially in the judgement of Murnaghan in the Supreme Court appeal indicate a sea change
in the Irish judiciary:256
In some Constitutions it is left to the Legislature to interpret the meaning of these principles, but in other types of Constitutions, of which ours is one, an authority is chosen which
is clothed with the power and burdened with the duty of seeing that the Legislature shall
not transgress the limits set upon its powers.
Over time this more vigorous approach by the judiciary would become part of the Irish judicial review culture.257 Morgan remarks on this suggesting that the Irish judiciary have at
times acted in a way which it could be queried whether judges have not gone beyond their
proper place in the polity.258
The adherence to a strong judicial review model from the bench is illustrated by the comments of Brian Walsh a former member of the Supreme Court, who acknowledged the role
the judiciary has played in extending rights provisions under The Irish Constitution: Constitutional protection is afforded also to very many rights which, though unspecified, have
been recognised by the courts as having the full backing of constitutional protection.259
However as stated above the Irish system migrated from a clearly weak model under the
Soarstt ireann or Irish Free State constitution, which model initially continued under
the 1937 constitution, but given the strength of Article 34 in particular the emergence of a
stronger model was always a possibility.
This happened without the sorts of debates that occurred in Canada, New Zealand and
Britain. Four possible explanations can be put forward for this. Firstly there was not the
same depth of traditional respect for the supremacy of parliament in Ireland, especially in
nationalist politics, from which appointments and appointees would emerge. Secondly, the
new Irish constitution was maturing just as the strong American judicial model was gaining international acceptance after 1945. Thirdly the younger Irish jurists had extensive
knowledge and contact with the American model. Finally Article 34 and to a lesser extent
Article 26 offered not just a mechanism, but an imprimatur for strong judicial review.
Delany, V.T.H. (1957) The Constitution of Ireland: Its Origins and Development The University of Toronto Law Journal, Vol. 12,
No. 1 (1957), 1-26. pp. 9-10.
255 Ibid, pp. 9-10.
256 Irish Reports (1947) p.99.
257 Delany, op. cit., pp. 22-24.
258 Morgan, David G (1999), The future of the Irish Constitution in Neil Collins (Ed) Issues in Irish Politics Today, Manchester:
Manchester University Press.
259 Walsh, Brian (1988) The Constitution: a view from the bench in Brian Farrell (Ed), De Valeras Constitution and Ours, Dublin:
Gill & Macmillan, pp. 193-194.
254
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Circumstances militated against weak judicial review in the Irish context. Firstly as was the
case with the Canadian Bill of Rights 1960, the Irish Free State constitution suffered from
being too pliable in the face of political imperatives. It fell precisely into the framework of a
weak model as described by Tushnet. [T]he mark of weak-form review is that ordinary legislative majorities can displace judicial interpretations of the constitution in the relative
short run.260
Secondly de Valera was negatively disposed towards a constitution that had the Anglo-Irish
Treaty261 as a schedule. Outlining a key difference between the 1922 or Irish Free State
constitution and the 1937 constitution Delany highlights a new direction in the latter.
While the 1922 constitution was conflicted between the British monarchical system and
Irish republicanism, there was no such ambiguity from 1937 and Irelands formal relationship with the traditional type of dominion constitution was terminated. 262 Had Ireland
not taken that road in 1937 it might have pursued a path towards what Gardbaum calls the
New Commonwealth Model of Constitutionalism.263 This model describes a form of weak
judicial review that has emerged primarily in Canada (Canadian Constitution Act 1982);
New Zealand (New Zealand Bill of Rights Act 1990) and in Britain (Human Rights Act
1998). Under this type of weak judicial review the courts have powers to question the constitutionality of provisions, but this can be circumvented by the legislatures. It is a stronger
provision than that which pertained under the Irish Free State constitution, as it includes a
non-binding role for the courts. While all three countries set out to establish a stronger
protection for human rights and at the same time steer some sort of middle ground between the old model of parliamentary supremacy and the strong judicial review position in
America and Ireland, the measures are neither uniform in substance nor operation. Nor
are they free from disapproval as is demonstrated by critiques like those of Anderson in a
hard-hitting comment on the Law Lords decision in December 2004 against the detention
of foreign suspects under the 2001 British anti-terrorism legislation.264 Anderson holds
that the British constitutional tradition is undermined by that decision which flowed from
Britains agreement to sign up to the European Convention on Human Rights. We signed
out of unfocused benevolence - and a few decades later, we realised that we had signed up
to a foreign appeal court which could overturn our laws.265
Tushnet, op. cit., p. 2786.

The Anglo-Irish Treaty signed and ratified by the British and Irish sides brought the Irish War of Independence to a conclusion
and allowed for the creation of the Irish Free State. It led to a major political split and subsequent Civil War in Ireland. De Valera
led the defeated Anti-Treaty side.
262 Delany, op. cit. p. 10.
263 Gardbaum, op. cit., 707-760.
264 In a strongly worded judgement the Law Lords found that the Anti Terrorism Crime and Security Act, 2001 was discriminatory,
disproportionate, unwarranted and a threat to traditional British liberty. For more detailed discussion and comment see for instance The Independent, The Guardian, The Times for December 17, 2004 and following days.
265 Anderson, Bruce (2004) The Law Lords have usurped the right of the British people to defend themselves The Independent,
December 20, 2004.
260
261
78
This has led, in his view, to the undermining of parliamentary sovereignty. He holds that
human rights have been best served under the traditional British constitutional system,
where parliament ultimately decides rather than being in a position where doctrines of
human rights are given precedence over the legal system and the Parliamentary process.266
Gardbaum sums up the differences and similarities in the three commonwealth systems:267
Canada by instituting a limited overriding bill of rights; New Zealand by a purely interpretive one; and Britain by a mixture of the two preserves the core element of parliamentary sovereignty... In Canada by exercising the override; in New Zealand by enacting legislation that expressly or by unambiguous implication limits rights; in Britain, first by express limitation and then by refusing to amend or repeal the statute after a judicial declaration of incompatibility.
The Canadian Constitution Act, 1982 through Section 33 of the Canadian Charter of
Rights and Freedoms allows both the federal and provincial governments to enact laws
that might conflict with the charters provisions, with some exceptions. To do this a legislature would have to include a clear statement of its intentions, a notwithstanding clause.
This was, perhaps cynically, done by the Quebec government who opposed the proposal for
political reasons, when it re-enacting its entire body of law with an omnibus notwithstanding clause. This was subsequently upheld in the Canadian Supreme Court in the 1988 case
Ford v. Quebec.268 While Canada provided the model for both New Zealand and Britain,
Gardbaum contends that the three jurisdictions have interpreted and implemented it in
different ways as outlined above.
This new model attempts to create a balance between the traditional supremacy of parliament, as operated under the Irish Free State constitution, and the type of strong judicial
review model adopted by America and followed by other countries after the second world
war.269 The commonwealth model came long after the acceptance of strong judicial review
under the Irish constitution, which was in line with contemporary practice in the United
States.270 The latter presumes that human rights are universal and immutable and therefore should be protected from interference even by the legislative branch of government.
There is here an unspoken notion that rights will continue to extend off an unbreachable
baseline. A baseline may be true of certain fundamental rights, but it would be foolish to
presume it applies to all rights. The very process of judicial appointment recognises this
dual possibility, the courts could engage in trimming rights that the legislature might wish
to expand. The fate of the social rights proposed by T.H. Marshall in the latter part of the
20th century indicate how rights can shrink, but it should not be assumed that this would
or could only emanate from the legislature.
Ibid.
Gardbaum, op. cit., p. 744.
268 Ford v. Quebec (Attorney General), File No.: 20306, Supreme Court of Canada, [1988] 2 S.C.R. 712; 1988 S.C.R.
269 Gardbaum, op. cit., p. 714-5.
270 See discussion on this in Wolfe, op. cit., pp. 292-316.
266
267
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Regardless of strong or weak judicial review rights remain open not just to interpretation
by the courts, and even if immutable they can be changed through a constitutional
amendment. International commitments and memberships of bodies like the United Nations and the Council of European present constraints on unilateralism, but not all rights
are encapsulated in the Universal Declaration of Human Rights and the European Convention on Human Rights and Fundamental Freedoms and not all states respect rights as
universally as these documents might hope.
In terms of rights the constitution is like a safety deposit box in the name of a club or society (a state). The contents are owned equally by all members of the club (citizens). From
within the club a special committee (judiciary) is appointed which has powers to safeguard
and keep an inventory of the contents, using a set of rules, which they adopt and can
change without reference to the full club membership. The club membership has the right
to dispose of the contents of the box or add to it. The special committee on reviewing the
contents can suggest that a certain item is not on the inventory and may even acknowledge
on their inventory an item previously voted for removal by the membership albeit under a
different label. Chief Justice Finlays judgement in the Irish Supreme Court X Case in 1992
seemed to do just that vis--vis a majority of the Irish citizenry who believed they had
drawn a line under abortion in the Eighth Amendment.271
37. I, therefore, conclude that the proper test to be applied is that if it is established as a
matter of probability that there is a real and substantial risk to the life, as distinct from the
health, of the mother, which can only be avoided by the termination of her pregnancy, such
termination is permissible, having regard to the true interpretation of Article 40, s.3, sub-s.
3 of the Constitution.272
The main argument in favour of a weaker model is that the legislature is closer to the will
of the people and therefore more democratic. Harel claims that rather than being antidemocratic judicial review in fact defends the rights of the majority against the power of the
legislature and thus provides mechanisms for a faithful implementation of the will of the
people.273 This argument is not so straightforward. For instance the weaker form of judicial review could just as easily be construed as fostering a concentration of power in an
elite, the government, at the expense of parliament and one of the other branches of government, the judiciary.
The weak form allows some ceding of power to the courts. It does not grant the courts the
force to face down the legislature on the constitutionality of a law as can happen in Ireland.274 The new Commonwealth forms have potency in terms both of their legitimacy to
question legislation and as moral gatekeepers. Not least is the potential of a judicial opinWhile I agree with the conclusion of the Supreme Court it is fair to say that many Irish citizens were at least surprised that the
terms of the constitutional amendment could have been interpreted in this way.
272 A.G. v. X[1992] IESC 1; [1992] 1 IR 1 (5th March, 1992) Supreme Court: The Attorney General (Plaintiff) v. X. and Others (Defendant) 1992 No. 846P.
273 Harel, Alon (2003) Rights-Based Judicial Review: A Democratic Justification Law and Philosophy 22: 247-276. p.249.
274 See Bunreacht na hireann Articles 26 and 34.
271
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ion to impact on public opinion and shift the balance of argument in the public sphere,
which might ultimately derail a measure. The judiciary on the other hand also acts as a sort
of permanent opposition with the power to act against government wishes. At one level this
offers a bulwark against precipitous or unreflective action by governments in the face of a
crisis real or imagined. While judges are ultimately appointed by governments, they generally occupy office for longer periods, sometimes bearing the mark of several governments.
That has obvious advantages and disadvantages. On the plus side they have an independence that allows them to speak against the mood of the moment which could have the impact of putting reflection into the model and forcing another perspective onto the agenda.
On the negative side they could represent entrenched views in the manner suggested by
Weber.
How judges are appointed in the United States and in Ireland, would not give rise to much
confidence in the courts capacity to act democratically. Schmidhauser rejects the notion
that the American political system is a government of laws, not men. He makes the point
that it is individuals who make, enforce, and interpret the law, thus the work of the courts
carry the indelible stamp of the judges and justices who have served on them.275 He also
points out that lower socio-economic groups find it very difficult to get the education, professional status and political connections to put them in the frame for selection.276 He posits three unstated requirements that greatly enhance potential selection for the superior
courts especially. Candidates who: i. come from a relatively privileged and politically active
family; ii. have excellent legal training and connections; and iii. are an established and successful politician or lawyer; are at a distinct advantage.277 Cook in her discussion on the
appointment of women judges would add gender to the list.278
In the Irish case similar trends can be identified, some of which were addressed with the
introduction of the Courts and Court Officers Act, 1995, which established a Judicial Appointments Advisory Board.
In some ways the Judicial Appointments Advisory Board serves a function not unlike that
of the US Senate in the ratification process, except in this case it puts forward a list of candidates from which the government may choose. In its 2002 Annual Report the Board
acknowledges that while there is no obligation on the Minister to request the Board to
make recommendations279 about any vacancy arising, nonetheless this has been the practice for all appointments since the introduction of the legislation. Likewise the government
could choose to ignore all of the recommended candidates; however this has not occurred
to date. This system does not remove political involvement in appointments, but it presents a very different picture to that described by Conway. Conways trawl through the National Archives highlights a total lack of transparency in the system, between the circulaSchmidhauser, John R. (1979) Judges and Justices: the federal appellate judiciary. Boston: Little, Brown & Co. p. 11.
Ibid, p. 96.
277 Ibid, pp. 95-100.
278 See Cook, Beverly B. (2000) Women as Supreme Court Candidates: from Florence Allen to Sandra OConnor in Hall, Kermit L.
(ed) The Supreme Court in American Society: Equal Justice Under Law New York and London: Garland Publishing. pp. 16-28.
279 Judicial Appointments Advisory Board (2002) Annual Report 2002. Dublin: Government Publications. p. 23
275
276
81
tion of an initial memo by the Minister and the arrival of the pink slip recording the name
of the person appointed.280 His account however is replete with examples of the sorts of
representations that were made by politicians, bishops and even candidates.
The new system in no way indicates that Schmidhausers281 thesis is any less valid, nor that
the system is essentially less political. Additionally in the reporting period 2002, the numbers of women presenting for consideration for judicial appointments declined in relation
to the seniority of the positions. Women represented 26.5% of candidates at District Court
level, but there were none at Supreme Court level. In 2002 within the overall scheme
30.8% of successful candidates were women. This translates as four women out of a total of
14 appointments, one to the High Court, two to the Circuit Court and one to the District
Court. There is however a trend towards a fairer representation of women in the Irish judiciary, even if there is still some distance to go, in 1996 only 13.3% of Irish judges were
women, by 2004 this had increased to 21.5%.
Judicial Review in Practice
Former Chief Justice Brian Walsh was clear on how he saw the role of the judiciary in reviewing and interpreting The Irish Constitution:282
Our courts have said that wherever there is a constitutional right the very existence of that
right provides its own remedy, and gives the courts power to take measures necessary to
give effect to the vindication or the defence of that constitutional right.
In the US Supreme Court Justice Hughes outlined similar sentiments, but in less equivocal
terms. We are under a Constitution, but the Constitution is what the judges say it is.283
This latter view although sounding cynical, Hogan points out, certainly has validity under
the Irish constitution. While the constitution vests considerable powers with the courts to
interpret the constitution, it gives them few guidelines on how they should exercise these
powers. There is no universal rule pre-ordaining the manner in which the Constitution is
interpreted.284 And he goes on to point out that its interpretation has drawn its inspiration
from many sources, including: public opinion, an historical view, liberal approach, natural
law, extra-constitutional principles, harmonious interpretation, viewed as an entire document. He outlines each in detail and cites cases in support of each.285 In the end he is
forced to the conclusion that286
Conway, Kieran (1996) Views from the National Archives on Judicial Appointments, Irish Law Times, April 1996, pp. 95-97. p.
95.
281 Schmidhauser, op. cit.
282 Walsh, Brian (1988) The Constitution: a view from the bench in Brian Farrell (Ed), De Valeras Constitution and Ours, Dublin:
Gill & Macmillan, p. 193.
283 Quoted in Gerard Hogan (1987), Constitutional Interpretation in Frank Litton (Ed.), The Constitution of Ireland 1937-1987,
Dublin: IPA, p. 173.
284 Ibid, p. 173.
285 For full details see Hogan, ibid.
286 Ibid, p. 187.
280
82
[n]o particular theory or method of constitutional interpretation has been applied by the
courts. Indeed, this lack of consistency has been so prevalent that individual judges have
from time to time adopted different approaches to this question, utilising whatever method
might seem to be most convenient or to offer adventitious support for a conclusion they
had already reached.
The dangers of such a diverse and unpredictable approach cannot be ignored. It is hardly
ideal that a constitution should be subject to the whims of judges or the good fortune of
those pleading its extension or protection. Schauer pursues the same issue when he speaks
of judges reaching perhaps politically or morally wise decisions287 but not in the context of
strict precedence nor on tight interpretations of the constitution itself. He points out the
serious pitfalls in trying to achieve neutrality, but it still raises issues about the role of the
judiciary vis--vis legitimate democratic government. To what extent is judicial review
stepping into the political domain, or indeed is it after all a part of the political domain given its status as one of the three branches of government. There are essentially three questions, none of which are new. How can we best achieve good government; is democracy the
best approach and how best can rights be safeguarded. Questions about judicial review wittingly or unwittingly are concerned with these three questions.
Harel outlines the three principal arguments in favour of judicial review: limitations hypothesis; review hypothesis; and judicial review hypothesis. Each is grounded in a different justification. The limitations hypothesis relies on the idea that rights are external to the
polity, that, not unlike natural law, they are not subject to change by the polity. The review
hypothesis claims that you need very strong powers of review that guarantee to limit the
powers of the legislature, keeping it to its proper domain, this impacts on democracy, but it
is a price that has to be paid. The third, judicial review, holds that since the review process
is essentially a legal one, then the best people equipped to do it are lawyers through the judicial system.288
Harel offers a critique of judicial review as being undemocratic, because he says that even
if judges rely on societal norms and values when using their powers of judicial review, it is
still judges doing so, not us.289 This has some validity, but it presumes democracy to
equate with an Athenian type direct democracy framework. The reality of contemporary
complex societies is that we have to look outside that sort of framework to re-imagine a
democratic approach that still has meaning in terms of citizens having the ultimate say.
Judicial Review under the Irish Constitution
Judicial review has, with a few notable exceptions, in the main extended rather than restricted rights provisions and generally has had a permissive influence on Irish society.290
Schauer, Frederick (2003) Neutrality and Judicial Review Law and Philosophy 22: 217-240. p. 223.
Harel, op. cit., p. 250.
289 Ibid, p. 257.
290 The 1983 Norris v. Attorney General case provides perhaps the most controversial countervailing decision by the Supreme
Court, albeit by a majority of three to two. In this case the unconstitutionality of Irelands archaic male homosexual laws was
287
288
83
It is of the utmost importance to consider the vulnerability of the constitution in this haphazard climate in view of the single opinion restrictions of Articles 26 and 34:
Article 26.2.2 The decision of the majority of the judges of the Supreme Court shall, for
the purposes of this Article, be the decision of the Court and shall be pronounced by such
one of those judges as the Court shall direct, and no other opinion, whether assenting or
dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.
Article 34.4.5 The decision of the Supreme Court on a question as to the validity of a law
having regard to the provisions of this Constitution shall be pronounced by such one of the
judges of that Court as that Court shall direct, and no other opinion on such question,
whether assenting or dissenting, shall be pronounced, nor shall the existence of any such
other opinion be disclosed.
While the possibility existed from its enactment, the process of extending the range of
rights defended by the constitution did not in fact begin in a serious way until the early
1960s. High Court Justice Donal Barrington was part of that generation of barristers who
began the process of realising the value of the constitution.
He identifies two reasons why this process did not begin sooner. The first was the setback
of the 1940 Supreme Court judgement on the constitutionality of the Offences Against the
State Act. This judgement in effect gave a sort of precedence to the British model of parliamentary sovereignty by saying that a person deprived of his or her liberty under a law
which was not repugnant to the constitution had no recourse to protection under Article
40.3.291 This left the Constitution as a broken reed in the eyes of barristers according to
Barrington.
The second reason that the process of judicial review did not begin sooner was that the
judges and lawyers had all been educated in the pre-constitution era. It was not until the
new judges, led by Chief Justice Cearbhall Dalaigh, began to recognise the legal existence
of the constitution, did constitutional pleadings become a common and important feature
of Irish cases. The 1963 case brought by Gladys Ryan to prevent the fluoridation of the
public water supply was one of the most important early cases. In short she felt that water
fluoridation was harmful to her own and her childrens health and as such impinged on her
constitutional right to bodily integrity. This right she felt existed, if not explicitly stated,
arising from Article 40.3.1.
Justice John Kenny upheld this contention in the High Court, although he did not disallow
fluoridation as he judged it to be harmlessthis decision was confirmed by a Supreme
Court judgement. Of the Kenny judgement, Kelly says: The principle for which she was
contending, namely that the citizens rights are not exhausted by the specific recitals in
being sought on the basis of the right to individual personal privacy of consenting adults. See also the discussion on the Hamilton
judgement in re. Attorney General(S.P.U.C.) v Open Door Counselling and Well Woman Centre.
291 Barrington, Donal (1987) The Constitution in the Courts, in Frank Litton (Ed.), The Constitution of Ireland 1937-1987, Dublin:
IPA, pp. 110-127.
84
special constitutional articles, he fully admitted.292 In his judgement, through interpreting

the words in particular to signify that other unspecified rights also exist, Kenny opened up
a new realm of judicial review under The Irish Constitution. [T]he acceptance of interpretations which acknowledged the existence of implied constitutional rights were first chartered.293 What Kenny did in fact was to allow for the possibility of such a contention that
certain rights may not in fact be listed in the text, but could, nonetheless, be recognised if
and when the case for such recognition was placed before the High Court. 294 Beytagh
somewhat mischievously ask: One may wonder, then, about the enumeration of those that
are in fact listed.295
Kelly lists a series of similar cases which followed and established the following: the right
to marital privacy, right to earn a livelihood, right to litigate, right to fair proceedings, right
to travel and hold a passport, certain rights of mothers and so-called illegitimate children.296
Justice Hamilton, in the more recent and perhaps better known case involving telephone
tapping by the Minister for Justice and journalists Geraldine Kennedy and Bruce Arnold in
1987, recognized the right to privacy. Effectively adding the right to privacy to those rights
already enumerated in the constitution.297
Brian Walsh, served on the benches of the High and Supreme Courts for thirty years and
together with then Chief Justice Cearbhall Dalaigh and Justice John Kenny was part of
that era which saw the greatest constitutional judicial activism. Walsh was the author of so
many of the important judgements of the period that the leading constitutional lawyer,
Thomas Connolly remarked that: Brian Walsh is writing the constitutional law of this
country.298 Kelly eloquently describes this era beginning in the early 1960s as follows:
This new judicial generation at the top led to nothing less than a revolution in constitutional jurisprudence, most particularly in the area of fundamental rights.299
Walsh viewed the constitution firstly as the fundamental law of the statethe basic law. He
also saw it as a living dynamic document, one concerned with the cultural and normative
reality of the contemporary society in which it is being interpreted, not as a pedantic or
scholastic document to be examined only historically and textually.300
It is a law that embraces both social and political objectives, and is one that gives force of
law to certain moral concepts. Therefore it is inevitable that many of the cases that come
Kelly, John (1988), Fundamental Rights in the Constitution in Brian Farrell (Ed), De Valeras Constitution and Ours, Dublin: Gill
& Macmillan, p. 168. For the actual case transcripts see Ryan v Attorney General[1965]IR294.
293 Doolan, Brian (1984), Constitutional Law and Constitutional Rights in Ireland, Dublin: Gill & Macmillan, p. 90.
294 For further discussion on this see also Morgan, David G (1999) The future of the Irish Constitution in Neil Collins (Ed) Issues
in Irish Politics Today, Manchester: Manchester University Press.
295 Beytagh, Francis X (1997), Constitutionalism in Contemporary Ireland, Dublin: Roundhall Sweet & Maxwell, p. 32.
296 Kelly, op. cit., p. 169. The full list of cases and reports is included in footnotes 19-25 inclusive, ibid, p. 173.
297 See also Casey, James (1987), Constitutional Law in Ireland, London: Sweet & Maxwell, p. 158.
298 Quoted in Barrington, op. cit., p. 115.
299 Kelly, op. cit., p. 167.
300 Walsh, op. cit., p. 192.
292
85
before the courts will mirror many social, economic, philosophical and political debates
that engage our people.
Judicial Review operates in a climate where all legislation is presumed to be constitutional,
a position that contrasts with the weaker or commonwealth models.301 Walsh points out
that the Oireachtas302 is directed by the constitution to enact only laws that are constitutional and that the judiciary operates on the presumption that this is how the Oireachtas in
fact operates.303 Therefore if any statute is capable of being given a construction that is not
inconsistent with the provisions of the Constitution, the courts will presume that this is the
construction intended by legislators.304 This is not a totally naive premise, he also points
out that the very existence of judicial review presents a deterrent to those who might be
tempted to legislate outside the restraints of the Constitution:305
... the presumption of constitutionality carries with it not only the presumption that the
constitutional interpretation or construction is the one intended by the Oireachtas but also
that the Oireachtas intended that proceedings, procedures, discretions and adjudications
which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.
This became particularly noticeable in government legislative policy during Mary Robinsons term as President of Ireland.
It is important too to recognise the judicial view of the actual legal documentBunreacht
na hireann (Constitution of Ireland). Walsh states that the courts see it as a contemporary fundamental law that speaks in the present tense. It is therefore interpreted in terms
of what it means in contemporary Irish society rather than what it meant in 1937.306
The possibility of judicial review has expanded the number and type of constitutional cases
being taken. Initially most of the cases involved individuals, whose position relative to the
law may have been shared by others, but essentially these were people who found themselves in a difficult legal position and who now sought relief by way of a constitutional case
to prove the precedence of some right over a piece of legislation which they thought to be
repugnant to the Constitution.
Barrington points out that many interest groups have also initiated constitutional cases
through an individual member.307 He lists farmers, ratepayers, taxpayers, trade unions,
bank officials and police officers. One could also add to this list and include among oth-
Bunreacht na hireann, Article 15.4.1.

The Oireachtas is the National Parliament of Ireland. It consists of the President and two Houses: Dil ireann (the House of
Representatives) and Seanad ireann (the Senate).
303 Walsh, op. cit., p. 194.
304 Ibid, p. 194.
305 Walsh, Brian (1980) Livestock Marts Case[Unreported], May 1980, p. 341 as quoted in Barrington, op. cit., p. 119.
306 Walsh, op. cit, p. 195.
307 Barrington, op. cit., p. 116.
301
302
86
ersthe Norris case relating to homosexual rights,308 the Crotty case regarding the ratification of the Single European Act,309 the McKenna Case on the use of public expenditure to
support one side in a referendum campaign310 and a number of cases relating to the Eight
Amendment and the so-called right to life provision in Article 40.3.3.311
One over-riding consideration of course in all these cases is having the financial means to
support the cost of such litigation. The risk of losing the case and being saddled with the
excessive costs involved puts this option beyond the means of most individuals and groups.
Kelly vigorously denies this bar,312 but despite his protestations regarding the generosity
and good will of the legal profession his case is very much disproved by the actual experience of litigants.
This flexibility of interpretation of the provisions of The Irish Constitution through judicial
review, like the American constitution, makes it possible to recognise and protect unspecified rights as much as those contained in the text. By contrast the European Convention on
Human Rights is a more rigidly defined international charterwhich by its nature precludes the possibility of as wide an interpretation. It cannot certainly, given the current
level of international diplomacy, go beyond the clearly defined principles of the signatory
countries.
The Single Opinion
The Irish Constitution has an important limitation, which makes its interpretation more
restrictive and less dynamic than the American constitution to which its approach to judicial review is broadly similar. That is the single opinion requirement outlined in Articles
26 and 34, as discussed above, which is categorical in its assertion that no other opinion,
whether assenting or dissenting, shall be pronounced nor shall the existence of any such
other opinion be disclosed.313
This restriction on the publication and dissemination of a single opinion firmly rejects the
merits of a dissenting judgement. Former Supreme Court Judge, Brian Walsh points out
the limitations of this in his foreword to Constitutional Law in Ireland. The obligatory
concealment of the existence of assenting or dissenting opinions also seriously hampers
the development of our constitutional jurisprudence.314 He contrasts this fetter with the
similar requirement of the German constitution, which [a]fter several years of being
bound by an identical rule was ultimately released from it to the great benefit of German
constitutional jurisprudence.315
Norris v Attorney General [1984], IR 36.
Crotty v An Taoiseach [1987] IR 713.
310 See McKenna v An Taoiseach (No 2) [1995] 2 IR 10.
311 The most notable case in this regard is perhaps the X Case of 1994.
312 Kelly, John (1987), The Constitution: Law and Manifesto in Frank Litton (Ed.), The Constitution of Ireland 1937-1987, Dublin:
IPA., p. 211 and footnote 4, p. 217.
313 Bunreacht na hireann, Article 26.2.2.
314 Walsh, Brian (1987) Foreword to Casey, James Constitutional Law in Ireland, London: Sweet & Maxwell, p. xii.
315 Ibid, p. xii.
308
309
87
It is interesting to note that the single opinion requirements of Articles 26 and 34 were only added by an Act of the Oireachtas in 1941, in that period granted to the Oireachtas to
make amendments to the constitution.316 The single opinion requirement has not, therefore, been ratified by the people of Ireland in the same manner that the Constitution itself
was in the 1937 referendum.
Casey points out that the Committee on Court Practice and Procedures found the single
opinion rule undesirable and injurious.317 The 1967 Committee on the Constitution viewed
it quite differently suggesting that [a]ny publication of other opinions would only tend to
create uncertainty in the minds of the people on matters of constitutional importance.318
Casey is correct in describing this as a paternalistic view of society and laments the fact
that a number of referenda have been held to amend the constitution and provisions for
the removal of these clauses could quite easily have been considered with one of them. Its
passage in 1941 clearly points to a closed worldview by the legislature, similar to the doctrinal position of the Roman Catholic church, viz. the existence of a single indisputable
truth. It assumes a great naivet on the part of the public and especially in their inability to
make discernments between subtle, but perhaps key points in both norms and law. It is a
volte-face against the very ideas of discursive opinion- and will-formation, and indeed
against the liberal maxims in favour of the autonomy of the individual. The introduction of
this provision displays a great sense of insecurity in the de Valera cabinet, that their project
could be de-railed by jurists, many of whom would still have been appointed by their political opponents and all would have been trained in the context of a British constitutional
model.
The Dil Debates of 1941 give credence to de Valeras paternalistic orientation. From the
point of view of the public interest, it is better to have a single judgement pronounced and
no indication given that other judges held a different view.319 Even though the Supreme
Court upheld the constitutionality of the 1940 Offences Against the State Act, in delivering
the judgement, Sullivan stated that it was the majority view. Although there was in fact no
minority view, de Valera felt that the hint of one could undermine public confidence in this
or other sensitive politically motivated Bills and thus closed that possibility by introducing
the single opinion amendments in 1941. In this de Valera created two points of weakness in
his great project.
Firstly, he undermined his inspired decision to have the 1937 constitution adopted in a
plebiscite. The retrospective act of closing the door, now that he faced a serious political
dilemma in relation to repressive legislation, saw him revert to the logic of the previous
constitution of giving precedence to parliament. In this he took a perfectly legal and constitutional short cut through his own safeguards that insisted on constitutional amendments
Under Article 51, the Oireachtas was allowed to enact constitutional amendments without reference to the people for a period
of three years after the first President taking office, this in effect lasted until June 27, 1941.
317 Casey, op. cit., p. 296.
318 Report of the Committee on the Constitution (1967) Dublin: Stationery Office (Imprint 1968) prl. 9817, paragraph 100.
319 Casey, James (1988), Changing the Constitution: Amendment and Judicial Review, in Brian Farrell (Ed), De Valeras Constitution and Ours, Dublin: Gill & Macmillan, see footnote 12, p. 161.
316
88
being approved both by the Oireachtas and the people through a plebiscite. This put into
the Irish Constitution a fundamental principle which had not been put before the people
and could not claim the popular imprimatur of the rest of the document.
Secondly, consistently with his own worldview, he reduced the potential of the constitution
to become a dynamic document with a strong latent potential to introduce reform with the
evolution of society. This sits comfortably with his own conservative ideology and with the
urge for retrenchment in the historical context of World War II and the challenge to the
states legitimacy emanating from the Irish Republican movement. It is also true that although judicial review was part of the US reality, it was still completely novel in the Irish
context. Given a paternalistic and conservative agenda, it would not have been viewed
positively in any case, and given the prevailing dogma of single truth values, it was almost
heretical. The government contrived to deprive the constitution of one of its potentially
most dynamic forces. Barrington is particularly strong on what he sees as the fallout from
this decision: The dissenting judgement has an honourable place in the evolution of the
law and at times turns out to be more influential than the judgement of the majority.320
The assertion that the minority view can be a vital catalyst in the development of our concept of right is absolutely valid, and whatever short-sighted political gain may have been
achieved by enforcing the single opinion in 1941 it has been outlived in the ensuing years.
It is not a surprising measure in a political framework where participation was kept at a
minimum. Not only does this measure restrict the judiciarys ability to develop and expand
concepts of right and law, but it also restricts the publics ability to actively engage in discourse on these same issues. De Valera believed in closed government, a tradition that has
persisted, despite claims by various subsequent governments to the contrary. In 1994 on
being elected Taoiseach John Bruton proposed that his government would govern as
transparently as if it were working behind a pane of glass.321 The actualisation of that may
not have been quite as open and in 1997 there was a necessity to hold a Cabinet Confidentiality referendum. Winds of change blow through the Irish system, but a residual ethos of
closed government still persists even if the philosophy of minimal participation and a belief
in the maintenance of the status quo received a severe buffeting through government and
church scandals in the 1990s.
Perhaps, as Keogh points out, we should be thankful that de Valera resisted some of the
more reactionary religious and political forces active in Ireland and most of Europe in the
1930s.322 His suspicion of the judiciary and legal system was too great even in the sensitive
political reality of the period. While he had been in power for over eight years at that stage
a substantial rump of the judiciary was still from the pre-Fianna Fil323 era and many had
been the products of an education under the philosophy of the British legal system, in
Barrington, op. cit., p. 121.
Dil Debates, 447, paragraph 1160.
322 Keogh, Dermot (1988), Church, State and Society in Brian Farrell (Ed), De Valeras Constitution and Ours, Dublin: Gill & Macmillan.
323 Fianna Fil is the political party formed by amon de Valera in 1926 as his vehicle to reengage in constitutional politics following the civil war. He led the party to government in 1932 and it has been the largest political party in Ireland since.
320
321
89
which circumstances his short-term suspicions may have had a justification. The single
opinion muzzle was possibly calculated to contain a short-term problem, while the concept
of an active judicial review would have been as distasteful as it was inconceivable.
The single opinion rule is at variance with the constitutions thrust of vesting exclusive interpretative power with the judiciary. It seems untenable to hold that the judiciary is
charged with this most important of constitutional tasks on one hand and yet deprived of
the trust to responsibly discharge this responsibility to the full. It is possible in the context
of a new and as yet not fully established state, to see how de Valeras agenda might be
thwarted by a hostile judiciary. The evidence would suggest though that all arms of the
state, put their duty and loyalty to the state before their personal preferences. To imagine a
context where a judiciary might create uncertainty and instability through a concerted
campaign against the state, fomenting dissension and questioning legitimacy, could rightly
be labelled paranoia. Partially gagging the highest court in the state ultimately was counter
productive to de Valeras own agenda as it weakened rather than strengthened the Irish
Constitution.
The Single Opinion Crux
The Constitutional amendments of June 25, 1941 included the single opinion stipulation,
but also placed another very important proviso on the question of constitutionality. This
proviso contained in Article 34, 3, 3 in effect means that once a law has been deemed to
be constitutional it can never again have its constitutionality tested. This Article reads:324
No Court whatever shall have jurisdiction to question the validity of a law, the Bill for
which shall have been referred to the Supreme Court by the President under Article 26 of
this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the
President under the said Article 26.
This could have serious ramifications in the long term. For instance the US Constitution is
over two hundred years old, in that period societal mores have changed considerably. A law
tested under the Article 34 provisions seems to at least partially undermine Brian Walshs
understanding of the constitution as a contemporary document. Article 34 places part of
the constitution and the laws it enshrines permanently locked in time.
The idea of judicial dissent as opposed to judicial unanimity revolves around issues of democracy and power. Denying a vehicle to express dissent invests judicial reviews with the
authority of a law, which is unified and understandable, a point made vis--vis some continental courts by Kelman. He says that judges in courts influenced by French law are driven
by the need to foster the myth of the laws impersonality and inexorability 325 above all
personal reservations or the need to maintain consistency. Judges are thus vested with almost sacred authority, they sit in judgement and reach the only possible conclusion, which
324
325
Bunreacht na hireann, Article 34.3.3.

Kelman, Maurice (1985) The Forked Path of Dissent The Supreme Court Review, Vol. 1985, 227-298. p. 227.
90
is legal, just and immutable. It is not a democratic process, it is about seeking out legal
truth and acting upon it.
Secondly it logically holds that the legislative process and popular consent decree what is
law. It is easy to see why de Valera might prefer this approach as it places the political elite
at the epicenter of the process. If the law is not right or the judgement is not acceptable it
comes back to the executive and legislature to fix it. This is done through recourse to new
legislation and/or through the introduction of a constitutional referendum. Here the courts
get an opportunity to speak, but having spoken the political elite have an opportunity to
revise. So the denial of democracy within the judicial system, keeps the message tight and
the target in focus. To take the route of majority and minority judgements essentially enhances internal democracy within the judiciary and gives judges power vis--vis the law
and politics. The law in no longer unitary, but is what the judges say it is (majority) or say
it could be, seen from another perspective (minority). So now discourse and debate on the
law is in the realm of the judiciary rather than the legislature.
Stack describes as an institutional approach, one where a single opinion, delivered by a
judge is not an individual view but that of the court as an institution. This distances individual judges from decisions and creates the impression that what is emerging is the rule of
law not the rule of men. In other words the court has interpreted the law, in the manner in
which priests interpret the word of god. Neither the individual judge nor priest can be taken to book, nor seen to have undue influence as the process is essentially about distilling
the truth or the truth in the law. Stack says: Dissent exposes the individuality that the institutional approach depends upon suppressing.326 The attraction of an institutional approach for de Valera is easy to appreciate. He did not want to promote a judicial approach
that might open up legal discourse, but rather one that would keep it bounded, keep it
strong and maintain the vision of a unitary state based on a single fundamental law, albeit
of many articles.
In some ways the single opinion steers the Irish system somewhere between the American
and German systems and those of the new commonwealth models discussed above, ironically through a different mechanism. While the commonwealth models and the American
system both allow dissent the cultural fundamentals are different. One holds with the supremacy of parliament the other with the constitution. In Irelands case it veers towards
the constitution, but with handcuffs, that would limit the scope of judicial activism, which
over time would require remedy through the action of parliament. What de Valera did not
truly envisage was the emergence of stronger judicial review; nor the wholehearted acceptance of his constitution as the legitimate fundamental law; nor that constitutional referenda could change articles, but not necessarily judicial opinions; nor that the political
Stack, Kevin M. (1996) The Practice of Dissent in the Supreme Court The Yale Law Journal, Vol. 105, No. 8 (June 1996), 22352259. p. 2240.
326
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elite cannot always sway the people to their point of view, a lesson he learned when trying
to replace the proportional representation system used in elections.327
Stacks discussion on the importance of dissent in the American context of a democracy
premised on deliberation, is the very opposite to the de Valera project of attempting to create unity not diversity. For Stack dissent legitimizes a court as it demonstrates that it
reaches its judgments through a deliberative process, in a manner not unlike the legislature.328Whether Stacks hypothesis is true of America today is a question for another time.
If we were to apply the single opinion rule rigidly on the US Constitution it would not have
been possible in the light of the Dredd Scott case329 for American slaves or even the children of former slaves to obtain full and equal citizenshipcertainly not without a constitutional amendment.
In the case of The Irish Constitution the further removed in time we become from the ruling deeming a particular law or part of it to be constitutional the less likely it is to hold true
in an unfolding contemporary interpretative scenario.
This rule too has a limiting effect on the Presidents prerogative to refer Bills to the Supreme Court. Article 26 gives the President the power to refer any Bill to the Supreme
Court for adjudication on its constitutionalitya policy adopted more often by Mary Robinson than any other President, but also used by her successor Mary McAleese and even by
de Valera himself during his time as President. The mechanism for seeking Supreme Court
adjudication is straightforward: Under Art. 26, the President, after consultation with the
Council of State, may refer any bill to the Supreme Court to consider whether the bill is unconstitutional.330 The instrument is however rigid both in its implementation and consequences and weak in terms of process. It loses most of its potential by the stipulation that a
bill so tested can never again have its constitutionality reviewed. Casey describes the process as follows:331
Article 26 imposes tight time-limits. The reference must be made not later than seven days
from the date of the Bills presentation for signature: Article 26.1.2. Thus the President
has only one week in which to meditate on the Bill, assemble the Council of State and reflect on the views expressed, and make his decision.
Morgan points out that the case is argued before the Court by council appointed on behalf
of the Court on one side and the Attorney General on the other, defending the constitu-
On June 17, 1959 a proposal by the de Valera government to amend the electoral system for Dil ireann elections from proportional representation under the single transferable vote method to the so-called first past the post method was rejected in a
referendum.
328 Stack, op. cit., p. 2236.
329 The Dredd Scott Case1856-57, involved a case brought in the US Supreme Court by Dredd Scott, a slave, who sought the
status of a free citizen under the constitution as he was living in the free territory of Missouri. In a judgement delivered by Chief
Justice Taney his claim was rejected and the Supreme Court held that slaves and their descendants had no rights as citizens and
that the US Congress could not forbid slavery. Slavery was eventually abolished by the 13th Amendment of the US Constitution in
1865.
330 Barrington, op. cit., p. 118.
331 Casey, op. cit., p. 80.
327
92
tionality of the bill. Barrington rightly explains that this is purely a hypothetical case and
will [l]ack the force and credibility of facts.332Such an approach is seriously deficient by
comparison to real litigation.
The concept is a good one, but the machinery open to the President and ultimately the constitution itself is poor. Given a more flexible brief and the removal of the unhelpful rule
that constitutionality can only be tested once, this could be one of the more positive elements of the constitution. The President could be more actively involved in affirming and
developing the constitutionas it now stands referring a bill to the Supreme Court could
be counter productive. A bill of doubtful constitutionality is much more likely to escape the
artificial test of a court without witnesses, evidence or litigation than it is to stand up to the
test of actual litigation. There is every reason therefore why a President should be very reluctant to refer a bill to the Supreme Court. Part of this problem could be alleviated
through the use of the American procedure where a line of legislation can be questioned,
rather than the entire Bill. Questions raised about the convening of the Council of State to
advise the President on the Health Amendment (No 2) Bill333 in December 2004 intimated
such a potential interpretation, given that many observers were concerned about the retrospective aspect of the legislation. But it was reported that a spokesperson for the President
said she had not identified any particular part of the legislation.334 Even if she had an
issue with a particular part of the legislation that level of focus was not open to her in considering whether to send the legislation to the Supreme Court for review.
Conclusion
In this article I have looked at judicial review under the Irish constitution. In this perusal I
have pointed out some important issues for those studying Irish law and government. It is
important to point out that the Irish constitution does not fit into the Commonwealth
model. This forces those who study the Irish political system to avoid placing Ireland into a
convenient category with Commonwealth systems. Yes in terms of the legislative branch of
government, Ireland very closely resembles the Commonwealth model. However the nature of the judicial branch, while operating within the Common Law tradition, also operates within the ambit of a constitution that does not recognise parliamentary supremacy in
a manner consistent with the Commonwealth model. In this regard then Ireland is closer
to the American model. In effect Irish government is a hybrid, with antecedents in the
Commonwealth parliamentary model with a strong flavour of the American constitutional
model.
I highlight two important areas in which the Irish constitution deviates from the American
constitution. Firstly the Irish constitution does not allow for the publication of a minority
Morgan, David Gwynn (1985), Constitutional Law of Ireland, Dublin: Round Hall Press, p. 106.
The bill arose after the Attorney General warned that deductions from elderly patients pensions for publicly funded care in
nursing homes were not lawful. It was published on December 15, 2004 and was passed through both Houses of the Oireachtas in
a few hours the following day to establish that the deductions: are and always have been lawful.
334 Hennessy, Mark (2004) Council of State to meet on nursing home Bill, The Irish Times, December 20, 2004.
332
333
93
opinion in Supreme Court judgements. This I argue owes much to the conservative ideology of its main author amon de Valera and indeed to the general traditionalist conservative
climate in Ireland at the time of its adoption. The impact is that judicial dissent is hidden,
giving a false impression of judicial certainty and reducing the potential for both public
and judicial expression and debate around current and emerging legal and constitutional
issues. In this regard we can say that the Ireland has a far less democratically oriented constitution than the US.
The second significant deviation from the American model is that under the Irish constitution an absolute closure is brought to the constitutionality of an act or bill once it has been
adjudicated upon by the Supreme Court. This measure may ultimately lead to a stultification of significant aspects of the constitution, denying it the potential to be the sort of living
document envisaged by former Chief Justice Walsh.
Currently where either the President or a litigant has tested the constitutionality of a bill or
act the Supreme Court delivers a final and absolute decision. This is a significant weakness,
which I believe ought to be addressed through a review mechanism that would have specific time frames and procedures, but nonetheless leave open the possibility of revisiting the
issue. The time frames would be necessary to avoid a constant questioning of constitutionality, especially around controversial questions like the right to life or other vexed issues.
The procedures would be necessary to ensure that the door for later testing is neither irretrievably sealed nor too easily opened. Perhaps five years after the Supreme Court ruling
the Senate (Seanad) would be automatically presented with a motion to consider lifting the
prohibition against a second Supreme Court opinion, which if passed would allow either
the President or any other litigant to bring the issue before the courts again. An additional
measure might be to set a limitation of say ten years after which any previous constitutional decision of the Supreme Court could be revisited, through normal legal procedures,
without reference to the Senate. That would put greater flexibility into a system that currently prevents reasonable review.
I point out the divergence between the American constitutional model and that of the
Commonwealth. I place Ireland closer to America, however I feel there is a strong case to
nudge Ireland at least in one respect closer to the Commonwealth model. Here I refer to
Habermass idea of a quasi-judicial review function for the legislature.335 He envisages a
parliamentary committee, which might include external lawyers, that would engage in a
review of legislation in terms of its constitutionality. This would not in any way step over
the separation of powers or the role of the Supreme Court, but rather force legislators to
reflect on the legislative process. In this way it would allow the legislature to rise above the
cut and thrust of parliamentary engagement and give a more rational, reflexive and considered view of both individual laws and the whole process of law making. In the party po-
Habermas, Jrgen (1996), Between Facts and Norms (Faktizitt und Geltung), William Rehg (Trans.), Cambridge: Polity Press,
p.241.
335
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litical realm in which western democracies exist it would require a cultural shift, but this
shift may already be emerging.
A second contention raised by Habermas concerns the place of the legal system in the wider societal context. For him it is not tenable for the judiciary and the broader legal community to operate on an isolated legalistic plane when it comes to interpreting and understanding laws and constitutions. Legal discourse no matter how tightly framed cannot be
viewed in isolation from the wider moral discourses of society. Law has already been
shaped by rules and principles, the principles themselves are drawn from both a legal and
moral base. He points to the evolution from the moral principles of natural law into positive law to support his case. This foundation points to the fact that the logic of argumentation inherent in the modes of justification of law are in fact open to moral discourses. He
says it is worthy of note that the legal discourses, however bound to existing law, cannot
operate within a closed universe of unambiguously fixed legal rules.336 This approach seeks
a greater opening up of the legal system and indeed the judicial branch and in the case of
Ireland a need to revisit the sorts of issues I raise vis--vis both the single opinion rule and
the finality of Supreme Court decisions on constitutionality.
What is at issue in all of these concerns is the entire business of good government. Two
central concerns on this agenda are democracy and human rights. The fundamental question about democracy does not stop at the legislative and executive branches of government. If we are serious about democracy then it too must play a role in the judicial branch.
The second issue, human rights, is not unconnected with democracy, both in terms of how
we recognize and justify rights within the broader society and the judicial branch of government.
Habermas, Jrgen (1988), Law and Morality, The Tanner Lectures on Human Values VIII, Cambridge: Cambridge University
Press, p. 230.
336
95

DOI: 10.989765/2016.5.768
Legal Language and the Process of Drafting the Principles on a European Law of Sales
Viola Heutger
Introduction
Drafting legal texts for European use is challenging. Drafting rules for consumers, and not
for lawyers only, requires even more skills. Being a member of a network preparing model
legislation on European Contract Law for the European Commission, I would like to present some insights into the working experiences within one of the various multilingual
working groups on European Contract Law. The working group on Sales Law is trying to
draft rules for the internal market with the aim to stimulate cross border transactions.337
Our main field of expertise is sales law and the working group is preparing a draft for a
European Sales Law. We are part of a so-called Network of Excellence under the 6th
framework program on research.338 In that program, a request for a European Contract
Law has been formulated and a network of excellence has recently published an academic
Dr. Viola Heutger is Associate Professor of Private Law at the University of the Netherlands Antilles (Curaao), Dean of the Faculty of Law, and former team manager of the working group on Sales Law of the Study Group on a European Civil Code.
337 The working group finished its work in 2008 with the publication of Principles on European Law of Sales, Hondius, Heutger,
Jeloschek, Sivesand, and Wiewiorowska, Munich: Sellier Law Publishers, 2008, and its contribution to the Draft Common Frame
of Reference; see Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR).
Interim Outline Edition, edited by the Study Group on a European Civil Code/Research Group on EC Private Law (Acquis Group),
Munich: Sellier Law Publishers, 2008.
338 http://cordis.europa.eu/fp6/dc/index.cfm?fuseaction=UserSite.FP6HomePage.
96
draft.339 By the end of 2007, the Network delivered a first proposal for the Common Frame
of Reference (CFR) for European contract law as described both in the Commissions Action Plan (COM [2003] 68 final) and the Commissions Communication entitled European Contract Law and the Revision of the Acquis: The Way Forward (COM (2004) 651 Final) of 11 October 2004.340 The academic draft will be the basis for a CFR drafted by the
European Commission. The CFR will be accessible from 2009 onwards and parties can
opt in and agree on the terms set out in the CFR for their contract.
The Joint Network on European Private Law (CoPECL Network of Excellence), founded in
May 2005, comprises several universities, institutions and other organizations, as well as
more than 150 researchers operating in all EU Member States.341 The networks proposal
will be written in English and its main parts will be translated into different European
Community languages.
Working language
The working language of most of the CoPECL working groups is English. The groups are
composed of researchers from different EU Member States. The proposal will be presented in the form of principles (Common Principles of European Contract Law, CoPECL),
including definitions, general concepts and legal rules. They will be supplemented by
comments, comparative information and an evaluative analysis consisting of an economic
impact assessment, an evaluation of the philosophical underpinnings, and the results of
several case assessments regarding the applicability of the principles. The outcome of the
different working groups of the CoPECL will be presented in different volumes.342 Following the submission of the academic draft, the work of the European Commission will start.
In 2009, and barring policy changes, the Commission will come up with a new legal instrument: a Common Frame of Reference (CFR). This instrument will be a legal toolbox
See Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Interim Outline Edition, edited by the Study Group on a European Civil Code/Research Group on EC Private Law (Acquis Group), Munich:
Sellier Law Publishers, 2008. Also online: www.law-net.eu.
340 See Christian von Bar, A Common Frame of Reference for European Private Law Academic Efforts and Political Realities, vol
12.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (May 2008), <http://www.ejcl.org/121/art121-27.pdf>.
341 http://www.copecl.org. The Network consists of several groups. These are: the Study Group on a European Civil Code; the
Research Group on the Existing EC Private Law, or Acquis Group; the Project Group on a Restatement of European Insurance
Contract Law, or Insurance Group; the Association Henri Capitant together with the Socit de Lgislation Compare and the
Conseil Suprieur du Notariat; the Common Core Group; the Research Group on the Economic Assessment of Contract Law Rules,
or Economic Impact Group, (TILEC, Tilburg Law and Economics Center); the Database Group; and the Academy of European
Law (ERA).
342 Most parts are published by Sellier Law Publishers. Some volumes haven been completed: Benevolent Intervention in Anothers Affairs, Christian von Bar, edited by the Study Group on a European Civil Code, 2006; Commercial Agency, Franchise and
Distribution Contracts, Martijn Hesselink, Jacobien W. Rutgers, Odavia Bueno Daz, Manola Scotton, and Muriel Veldmann, edited
by the Study Group on a European Civil Code, 2006; Principles of European Law. Study Group on a European Civil Code. Personal
Security (PEL Pers.Sec.), Prepared by Ulrich Drobnig, Sellier, Bruylant, Staempfli, Oxford University Press, 2007; Principles of
European Law. Study Group on a European Civil Code. Service Contracts (PEL SC), prepared by Maurits Barendrecht, Chris Jansen, Marco Loos, Andrea Pinna, Rui Casco, and Stphanie van Gulijk, Sellier, Bruylant, Staempfli, Oxford University Press, 2006;
Principles on European Law of Sales. Lease of Goods. Principles of European Law, Kare Lilleholt, Anders Victorin, Andreas
Ftschl, Berte-Elen R. Konow, Andreas Meidell, and Amund Bjoranger Torum, edited by the Study Group on a European Civil
Code, Principles of European Law, Sellier, Bruylant, Staempfli, Oxford University Press, 2007, Hondius, Heutger, Jeloschek,
Sivesand, and Wiewiorowska, Sellier, Bruylant, Staempfli, Oxford University Press, 2008.
339
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that is easily accessible for parties drafting their contracts for cross-border use.343 The
CFR will provide definitions and principles that can be used for all kinds of contracts.
This paper will provide an inside view on the linguistic aspects of the working method of
the working group on European Sales Law of the Study Group on a European Civil
Code.344 This group has drafted the Principles on Sales Law for the CoPECL draft and is
composed of lawyers from different national backgrounds.345 With the exception of one,
all speak English as a foreign language. The group has drafted all legal black-letter rules,
comments and comparative notes of the proposal for a European Sales Law.
Models for English terminology
The following documents served as models for the English terminology: the English version of the Convention of the International Sale of Goods (CISG),346 the Consumer Sales
Directive (1999/44/EC), an English translation of the Dutch Civil Code,347 as well as the
English set of rules of the Principles of European Contract Law.348
These English-language sources use quite different legal terminologies. Not all terms are
attached to the same legal concept, and a hierarchy of sources must therefore be introduced. Our project is addressed to the European Commission, and what is known as the
community acquis therefore has to be taken into account. The community acquis is the
body of common rights and obligations, which bind all the Member States together within
the European Union. As such, the community acquis is also binding for a new legal draft
on sales law. Part of this acquis is Directive 1999/44/EC on certain aspects of the sale of
consumer goods and associated guarantees. To a large extent, we have copied the terminology as well as the legal content of the Directive.
See Beale, The Development of European Private Law and the European Commissions Action Plan on Contract Law, Juridica
International, vol. X, p. 14, 2005.
344 For a description of the working group and their legal method, see Viola Heutger, Ein gemeineuropisches Kaufrecht, Peter
Lang, Frankfurt am Main, 2008, p. 171-199 and the website www.sgecc.net.
345 The group is composed of Ewoud Hondius (team leader), Viola Heutger (team manager), John Dickie (national reporter: English law, until October 2002), Christoph Jeloschek (national reporter: Austrian law), Hanna Sivesand (national reporter: Swedish
law), Aneta Wiewiorowska (national reporter: Polish law), Georgios Arnokouros (national reporter: Greek law, until the end of
2002). The comparative notes have been elaborated with the assistance of members of the Amsterdam and Tilburg teams covering France (national reporter: Andrea Pinna), Italy (national reporter: Manola Scotton), Germany (national reporter: Viola
Heutger and Roland Lohnert, until June 2002), the Netherlands (national reporter: Marco Loos), Portugal (national reporter: Rui
Cascao), and Spain (national reporter: Odavia Buenodiaz). The rules have been discussed at the plenary meetings of the Dutch
team (in addition to the members already mentioned: Maurits Barendrecht, Martijn Hesselink, and Jacobien Rutgers). In particular, the Dutch team would like to thank Giuseppe Donatiello for his valuable comments and suggestions.
346 See http://www.cisg.law.pace.edu/cisg/text/treaty.html.
347 New Netherlands civil code: patrimonial law (property, obligations and special contracts) = Nouveau code civil nerlandais: le
droit patrimonial (les biens, les obligations et les contrats particuliers) = Nieuw Nederlands Burgerlijk Wetboek: het
vermogensrecht (zakenrecht, verbintenissenrecht en bijzondere overeenkomsten); translated by P. P. C. Haanappel and Ejan
Mackaay, Deventer: Kluwer, 1990.
348 Lando, Ole, and Beale, Hugh. Principles of European Contract Law Parts I and II. The Hague: Kluwer International, 2000.
Lando, Ole, Clive, Eric, Prm, Andr, and Zimmerman, Reinhard. Principles of European Contract Law Part III. The Hague:
Kluwer International, 2003.
343
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Not being part of the acquis but serving as a model for all contributing groups for a proposal for the CFR are the Principles of European Contract Law. These principles form the
general part of European contract law. They were mainly drafted before Directive
1999/44/EC, and these two legal acts do not use the same legal language. Furthermore,
the Directive concerns consumer law only. We therefore also needed model legislation for
commercial law: the 1980 convention on contracts for the international sale of goods
(CISG). CISG also served as a model for Directive 1999/44/EC. The English translation of
the Dutch Civil Code has been used as a source of inspiration.
The sales draft from the network covers all sales transactions: commercial contracts, consumer contracts, and private contracts (within the meaning of activities of a nonprofessional seller and a non-professional buyer).
The definition of goods to be sold
Right from the start, it was of major importance to find an adequate definition for all objects to be sold and bought under the Principles. CISG and the Directive both use the term
goods for the object of the sale. We adopted this term for all objects to be sold under our
rules, but in doing so, we encountered a problem. The Principles on European Contract
Law do not provide a definition of the term goods, but the Directive and CISG do. The
term goods in the Directive is limited to the notion of consumer goods and is defined as
follows:
Article 1
Scope and definitions
1.
2. For the purposes of this Directive:
(b) consumer goods: shall mean any tangible movable item, with the exception of:
goods sold by way of execution or otherwise by authority of law,
water and gas where they are not put up for sale in a limited volume or set quantity,
electricity;
CISG defines goods only indirectly through a formulation that provides the areas where
the regulation does not apply. Through this negative definition, the meaning of the term
goods can be derived.
Article 2
This Convention does not apply to sales:
(a) of goods bought for personal, family or household use, unless the seller, at any time
before or at the conclusion of the contract, neither knew nor ought to have known that the
goods were bought for any such use;
(b) by auction;
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(c) on execution or otherwise by authority of law;

(d) of stocks, shares, investment securities, negotiable instruments or money;
(e) of ships, vessels, hovercraft or aircraft;
(f) of electricity.
Neither definition covers all kinds of goods we wanted to promote under the scope of application of our European Sales Principles. The term goods had to be redefined again. It
took four years to reach a consensus, and our definition of goods in the Principles of European Sales Law is now as follows:
Article 1:104: Definition of goods

In these Principles, the word goods:
(a) means corporeal movables, including ships, vessels, hovercraft or aircraft, space objects,
animals, liquids and gases; and
(b) includes goods which at the time of the conclusion of the contract do not yet exist.
With this definition, we incorporated objects that were excluded from the other legal texts.
Because of the different expectations of contracting parties, it was important to come up
with a clear definition of what kinds of objects would be covered by our rules.
As reported above, the principles are meant to be translated later on. Another problem
surfaced when we realized that the different sources provided different terms in the respective languages. I will give an example from the different German translations of our
sources. The Directive reads:
Artikel 1
Geltungsbereich und Begriffsbestimmungen
(2) Im Sinne dieser Richtlinie bezeichnet der Ausdruck

b) Verbrauchsgter bewegliche krperliche Gegenstnde, mit
Ausnahme von
Gtern, die aufgrund von Zwangsvollstreckungsmanahmen
oder anderen gerichtlichen Manahmen
verkauft werden,
Wasser und Gas, wenn sie nicht in einem begrenzten
Volumen oder in einer bestimmten Menge abgefllt
sind,
Strom;
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Whereas CISG speaks of:
Artikel 2 [Anwendungsausschlsse]
Dieses bereinkommen findet keine Anwendung auf den Kauf
a) von Ware fr den persnlichen Gebrauch oder den Gebrauch in der Familie oder im
Haushalt, es sei denn, da der Verkufer vor oder bei Vertragsabschlu weder wute noch
wissen mute, da die Ware fr einen solchen Gebrauch gekauft wurde,
b) bei Versteigerungen,
c) aufgrund von Zwangsvollstreckungs- oder anderen gerichtlichen Manahmen,
d) von Wertpapieren oder Zahlungsmitteln,
e) von Seeschiffen, Binnenschiffen, Luftkissenfahrzeugen oder Luftfahrzeugen,
f) von elektrischer Energie.
Our inspiration sources, civil codes from German-speaking countries, mainly used the
term Sache for the English expression of goods,349 whereas the Directive used the term
Gter. CISG used yet another term, Waren, as a translation of goods.
Which German term would be the most fitting for a European setting? The national
Sache, the European consumer-context Gter, or the international Waren? In the end, it
was a matter of policy that made us opt for the term Waren. Sache was seen as too controversial with regard to rights to be sold, and Gter reflected too strongly the purely consumer-orientated Directive, whereas Waren could include all kinds of assets.
During the work on the draft European Sales Law, all team members became highly sensitive to linguistic problems; we sometimes even changed the English wording in order to
facilitate an adequate translation. The principles we have been drafting are aimed to serve
as rules for cross-border trade, and we have therefore had to offer rules and definitions
that are clear and that do not encourage the contracting parties to use their own legal terminology when reading our rules in their own language.
Language policy
European integration cannot proceed satisfactorily without attention being given to linguistic matters. The European Union continues to grow, and recent years many more official languages have been added to already substantial collection of official languages.
More languages means more translations, and more translations means more staff and a
See, e.g., Begriff der Sache 90 BGB (Civil Code Germany) Sachen im Sinne des Gesetzes sind nur krperliche Gegenstnde,
and 285 ABGB (Austrian Civil Code): Alles, was von der Person unterschieden ist, und zum Gebrauche der Menschen dient,
wird im rechtlichen Sinne eine Sache genannt.
349
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more profound impact of interpretation on the law. No two translators will produce identical translations. What is needed is a European language policy. Such a policy could, for
instance, be a clear decision on which language versions would be binding when the intention of a rule is unclear. Another option could be the development of standards for coherent language use. At present, the official legal language of the European Union is far from
being a common pan-European standard. The Directives do not follow a specific language
policy and each Directive therefore confronts the national legislators with new legal terminology.
Furthermore, the implementation process of European Directives offers a wide range of
linguistic interpretations and opens the door to different uses of language. When comparing the German and Austrian civil codes, for example, it can immediately be observed how
different both legal languages are, even in areas that derive from the same European Directives. In other words, besides the German language used in the Directive (EU German),
two different legal national German languages can be distinguished in the civil codes of
Germany and Austria. In cross-border trading, parties must negotiate precisely what they
expect from each other, even if both parties are native speakers of German. One term in a
shared language can have different implications in the two legal systems. For this reason,
the working group on European Sales Law tried to avoid using the terminology of a particular national code.
At the start of cross-border negotiations, it is an open question which contracting language should be used. Consider the sale of a book to be sent from the Netherlands to
Germany. Should the language of the seller, Dutch, or the language of the buyer, German,
be chosen? Alternatively, would it be better to conclude the contract in English? If the
chosen language was German, could the same contract also be used for an Austrian buyer?
As can be seen from this simple example, cross-border trade is more than offer and acceptance, transport, and payment of the price; it generally involves language choices. The
language choice is not restricted to the contract, but is also relevant for such documents as
instruction manuals and guarantees. Language choice does not only concern making a
clear choice for a particular language, it is also a question of which terminology within a
single language and what style should be used. Furthermore, language choice is a touchy
consumer issue. May European consumers always expect to negotiate in their native language (assuming it is one of the official languages of the EU)?
Binding rules or pure information?
Another problem is the method currently used by the European Commission. As I mentioned earlier, the CFR will provide rules and definitions, and as the examples given above
show, some of the rules contain definitions. These definitions have been drafted for the
purposes of a common European Sales law. However, some of them could also be used for
other contracts, and for that reason the European Commission has decided to create a
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separate CFR category of definitions. Lawyers now face the problem of determining which
category is binding: the rules or the definitions. What will be the legal nature of the definitions? Are they of an accessory or of an autonomous nature? Are they subsidiary or competitive? Can this be determined by analysing the text? So far, the legal nature of neither
the rules nor the definitions has been specified by the European Commission.
The draft CFR for a European contract law provides some definitions. Some of these are
included in the CFR chapter on sales law. The definitions of consumer, contract, goods,
and movables read as follows:350
Consumer
A consumer means any natural person who is acting primarily for purposes which are
not related to his or her trade, business or profession.
Contract
A contract is an agreement which gives rise to, or is intended to give rise to, a binding
legal relationship or which has, or is intended to have, some other legal effect. It is a bilateral or multilateral juridical act.
Goods
Goods means corporeal movables. It includes ships, vessels, hovercraft or aircraft, space
objects, animals, liquids and gases. See also movables.
Movables
Movables means corporeal and incorporeal property other than immovable property.
The use of the terms goods and movables is tricky. So far, neither term is used coherently
in the draft CFR. In the years to come, this will be a challenge for interpretation, above all
for those who have to translate the CFR. The draft CFR presents problems similar to those
found in dictionaries. Most legal dictionaries are not linked to a specific legal source and
therefore offer only a variety of different terms. This problem increases with every new
legal instrument developed by the European Commission. Texts must not only be translated consistently, their legal significance must also be clearly expressed. Are they default
or binding rules or do they merely have an explanatory function?
See the sections on definitions in Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of
Reference (DCFR). Interim Outline Edition, edited by the Study Group on a European Civil Code / Research Group on EC Private
Law (Acquis Group), Munich: Sellier Law Publishers, 2008.
350
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Towards a European legal language curriculum

The use of different languages is one of the obstacles to the EU integration process. Crossborder trade, especially from the consumer perspective, is hindered by language barriers.
To reach a common use of legal language, a curriculum must be developed for a more coherent linguistic and terminological use inside the EU.351 Legal text of a certain quality can
only be drafted when the legislator has a fundamental linguistic and legal knowledge and
acts coherently. The past years have shown that the Commission is not a legislator acting
coherently: legislative acts display all manner of styles, and, for no discernible reason,
terms differ from one document to another and sometimes even within one document.352
In a multilingual environment, much more attention must be drawn to the interplay and
symbiosis of linguistic as well as legal knowledge. Only a small number of EU citizens will
participate in the internal market outside their home countries as long they do not trust in
translations of foreign legal rules.
In the last thirty years, the interaction of law and language has developed into a particular
problem for European lawyers and translators/interpreters due to the internal market and
its sets of laws. Too many legal rules (or proposals) must be translated in a short time, and
as a consequence, in some cases, legal rules come into force before the original document
has been translated into all official languages. Many proposals for new directives will never be translated into all official languages. The capacity of the Commission to provide texts
in all EU languages is overstretched as it is. Improvements are not to be expected in the
near future, as the workload is simply too heavy. Now is the time to reflect on better working procedures for the future.
The twenty-seven Member States of the EU have twenty-three national or official languages among them.353 The linguistic expansion started in 1973 with the first enlargement
of the EC when the UK, Ireland, and Denmark joined the Community. With the enlargement of 2007 the number of languages increased to the current twenty-three. Direct, language-paired translation into all of these languages will require a staff of 506 translators.
Due to the high-level requirements, all these translators must also be experts in comparative law. Immediate translation from one language into another will be nearly impossible.
New methods for cross-legal dialogue need to be found.
In addition, there are no legal comparatists who speak all official languages in order to
diminish the infrastructure problems. Furthermore, there are well over one hundred regional or minority languages spoken in various parts of the EU. Moreover, there are no
lawyers who are well-versed in all 28 legal systems, including the Scottish cross-legal sysPozzo, Harmonisation of European Contract Law and the Need of Creating a Common Terminology, in European Review of
Private Law, vol. 11, no. 6, 754, 2003.
352 See the German Version of the 2001 Action Plan on a more coherent contract law. Different translations of standard contract
terms can be found there.
353 Irish, Bulgarian, and Rumanian have been official languages of the EU since 2007.
351
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tem, of the European Union. In future, all European lawyers will have to be fluent in at
least two official EU languages (legal or otherwise). If they are not, real legal integration
and legal cross-border harmonization cannot be achieved. Furthermore, all lawyers must
be aware of the fact that knowing a foreign language is not the same as knowing a foreign
legal language. Only a dual approach knowing both another legal system and its language will enable lawyers to successfully participate in cross-border dialogue. Each term
is connected to a specific concept and this concept can vary from nation to nation and
even from legal field to legal field. Parties have contractual freedom and therefore probably do not need to know each others legal system all that well. But does this also hold true
for many legal relations outside individual contract law, such as recognition of foreign diplomas, and alimony and other post-divorce expenses?
I will illustrate these reflections with some practical examples. At the working group meetings of the Study Group on a European Civil Code there were long discussions about the
word guarantee. The term sounds very much the same in many languages: garanzia,
Garantie, garantie, etc. However, it has more than one legal meaning. Depending on its
national legal or European background it can mean: warranty; legal rights; extra rights of
a buyer in case of defective goods added to the buyers legal rights; a security; a pure consumer guarantee; or a confirmation that something will not change. Following the policy
of consumer protection, the interpretation of the term cannot be left to the judge. The legislator must come up with a clear definition for the specific application of the term.
Another example is the term consumer as defined in Article 1, paragraph 2 of the Consumer Sales Directive 1999/44/EC. There a consumer is described as a natural person
who, ..., is acting for purposes which are outside his trade, business or profession. In other Directives, however, another definition is given. And what about the definition in the
door-to-door selling Directive, where a consumer is defined as a natural person who, ...,
is acting for purposes which can be regarded as outside his trade or profession (Art. 2)?
The price indication Directive defines a consumer as a natural person who buys a product
for purposes that do not fall within the sphere of his commercial or professional capacity
(Art. 2(e)). And according to Article 1(a) of the Unfair Commercial Practices Directive
2005/29/EC a consumer is any natural person who, in commercial practices covered by
this Directive, is acting for purposes which are outside his trade, business, craft or profession.
Two common features in the consumer definitions are that the consumer is a natural person and that the purpose should be outside some kind of business, commercial or trade
activity. However, the given definitions are far from being coherent. Our own draft, being
an abstract of the community acquis of the consumer notion, reads:
Article 1:202: Definition of consumer sale
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For the purpose of these Principles, a consumer sale is a contract under which a natural or
legal person who is acting to any extent for purposes related to that persons trade, business or profession (the professional) sells goods to a natural person who is acting primarily for purposes which are not related to that persons trade, business or profession (the
consumer).
I will not provide here more definitions of the consumer notion from national codifications. Suffice it to say that these are not identical and raise a variety of open questions.
One term can have different impacts. That in itself need not be a problem, as long as lawyers know how to interpret legal terms. However, in cross-border trade the context of a
foreign rule quite often is not as clear to the lawyers involved as the context of their native
legal system.
These examples show that the EU legislator cannot be seen as successfully setting standards and that improved law-making is much needed. Furthermore, there is an urgent need
for higher-quality legal language training of lawyers throughout Europe. Such schooling
should of course focus on the foreign language itself at least as much as on a standardized
style of drafting. No two legislators dealing with a similar topic will produce identical
drafts, but what should be possible is a style guide for all European lawyers. Such a style
guide should take into account comparative methods.
Eurobarometer survey
Levels of foreign language proficiency differ throughout Europe. In a 2005 Eurobarometer
survey, half of the citizens of the EU expressed their ability to have a conversation in at
least one language other than their mother tongue. The percentages vary between countries and social groups: 99% of Luxembourgers, 93% of Latvians and Maltese, and 90% of
Lithuanians know at least one language other than their mother tongue, whereas a considerable majority in Hungary (71%), the UK (70%), Spain, Italy, and Portugal (64% each)
only speak their mother tongue. Men, young people, and city residents are more likely to
speak a foreign language than women, senior citizens, and rural residents, respectively.
The best foreign language skills are found in relatively small Member States whose national languages are not widely spoken. It would make sense to analyze the legal education
in these smaller countries in order to gain insights into how to train students in acquiring
the knowledge of one or more foreign languages. Another question is what kind of conversation the Eurobarometer meant: a casual conversation about the weather or the capacity
to negotiate and to conclude a contract? I am quite skeptical about the Eurobarometer as
an indicator of how many Europeans are able to understand a legal document in a foreign
language.
Nevertheless, it can be argued that there is no need for all people to speak one or more
foreign languages. Nobody is obliged to participate in cross-border trade and, further-
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more, there are many indications that the average consumer does not know the legal language of his or her mother tongue. This argument, however, is at odds with the aims set
out by the Commission. In order to strengthen the internal market everybody must be
able to participate in it. Only active participation will bring European integration, and foreign language knowledge is therefore needed.
According to the Eurobarometer, the most widely known foreign language in the EU is
English with some 34%, followed by German (12%) and French (11%). This preference for
specific foreign languages is reflected in the contract-law-harmonization projects in Europe. The official working language of the Study Group on a European Civil Code is English, the unofficial working language of some sub-working groups is German, and for another project, the so-called Pavia or Gandolfi Group has chosen French as its working language. French and English are also the main working languages of the Commission officials in Brussels.
Cross-border trade in a multilingual environment
The European Commission drafts legal texts in languages whose words usually have a
fixed legal connotation at the national level. Quite often, these terms have other connotations on the EU level. This is one reason why Directives contain so many different definitions. These definitions strive for clarity and a context-based terminology. Unfortunately,
the intention of the European Commission to create a clear and conceptually orientated
terminology can ultimately not be reached by this method. The definitions as codified in
Directives will be implemented into national law and redefined in accordance with existing definitions. The language of Directives is a more or less artificial one in order to give
guidance to a national legislator. In the coming years, the Commission will come up with
more Directives that provide maximum standards, which will lead to more obligations to
follow the way set out in the Directives. It remains to be seen whether this new approach
will be effective.354
Cohesion and legal terminology in systems which have the same language
On the national level, there are specialist legal languages within one national language in
such sectors as medical liability law, economics, criminal law, and private law.355 The term
property, for example, has entirely different meanings in constitutional law and private
law.
The new Directive on consumer credit transactions aims to provide maximum harmonization. In the drafting process, so many
problems had to be discussed that the modified proposal of 2004 had to be revised again in 2007 and the new Directive was not
launched until 2008. See Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC. Member States are asked to transpose the Directive into national law before 12 May 2010.
355 Fraser, The Discourse of Official Texts and How it Can Impede Public Service Translators, Journal of Multilingual and Multicultural Development, vol. 20, no. 3, p. 194, 1999.
354
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It can even be said that the Dutch legal language or the Swedish legal language as used in
EU documents are also separate legal languages, detached from the national legal language.
Legal language even differs between countries having the same tongue. The use of German
in legal language differs in its terminological use in Germany, Switzerland, Liechtenstein,
Austria, South Tyrol, and Belgium.356 Germany, Switzerland, and Austria do not have a
political unity, nor even a common legal source. Furthermore, there is a lack of interaction
in law-making.357 As these countries do not share a common legal discourse, they inevitably use more than one German legal language. Nevertheless, there is a great deal of
intermobility among lawyers in these German-speaking countries. Austrian professors are
appointed in Germany, German professors work in Switzerland and Austria. In other
words, the German-German language barrier is not an absolute one.
Other countries with the same language have chosen an alternative approach. The Dutch
legislator Meijers helped his Belgian colleague Van Dievoet to translate the French version
of the Belgium Civil Code into Flemish in the early fifties of the last century.358 Furthermore, in Scandinavia national legislature cooperate closely in law-making. These initiatives should be stimulated. Knowledge of another legal language makes cross-border understanding much easier.
A legal language framework
The developments of recent years have shown that the Commission has not been very sensitive to either language use or coherence. In order to improve consistency and coherence,
several projects haven been launched. In the field of European contract law, the 2003
Communication from the Commission to the European Parliament and the Council titled
A more coherent European contract law An action plan (COM(2003) 68 final) was a
first step towards rethinking legal harmonization and responsible use of legal concepts
and definitions. In the Communication, the Commission expressed the hope that a CFR
will improve the transparency and accessibility of enacted regulations. This CFR is now in
its final drafting stage, but many linguistic problems remain unsolved.
If the practice of including document-specific definitions in Directives, databases, and dictionaries is continued as the only means of achieving a common understanding, the end
result will be mutual incomprehension. Law develops and changes; not every term will be
used for the same concept for ever. Some terms have a short life span, for example, the
medium telex, which has been replaced by fax, which itself may soon be obsolete. Other
Sacco, Einfhrung in die Rechtsvergleichung, p. 39, Baden Baden, 2001.
Lopez-Rodriguez, Towards a European Civil Code Without a Common European Legal Culture? The Link Between Law, Language and Culture, Brooklyn Journal of International Law, vol. 29, no. 3, p. 1209, 2004.
358 Van Dievoet, Het Nederlands als wetstaal in Belgi in de negentiende en de twintigste eeuw, Pro Memorie, vol. 5, no. 1, pp.
96-118, 2003.
356
357
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terms take on a new meaning, such as the concept of possession in the New Dutch Civil
Code. Legal developments do not stop on the European level. The rejected European Constitution anticipates new legal instruments using existing terms with different meanings.
Article 33 of the Constitution provides definitions for the legal terms European laws, European framework laws, European regulations, European decisions, recommendations,
and opinions. These definitions are not identical to those currently in use. Legal language
is not drafted for eternity. Like any language, it is an instrument to help people understand each other.
Towards a coherent European legal language
Standardization of legal language within the EU will help widen integration. On the one
hand, it is evident that the existing community acquis (the legal documents enacted by the
Commission) must be reviewed. On the other hand, lawyers long for harmonization and
standardization. Cross-border trade is only possible with standards and the parties confidence in the regulations.
The use of standardized terms seems to be a process that can only be achieved through a
coherent use of language and the lessons learned from integrating activities, which have
not been very successful,359 as the example of the consumer notion shows. Nevertheless,
law and language are developing; there is a need to find names for new legal instruments
and it must be accepted that these terms can only have a temporary connotation.
Standardization could be achieved in different ways.360 One approach could involve CFR
as has been drafted by an academic network under the guidance of the European Commission. Such a CFR should provide definitions of terms and concepts for a sector-specific use
in order to help develop a uniform and coherent use of language. It should reflect the discussion and consultation process of stakeholders, academics, and the policy decisions of
the Commission itself as well as national legal tradition. Furthermore, such a CFR should
clearly indicate whether or not its definitions can be used as a binding interpretation instrument.
Moreover, a new method of drafting legal texts for a multilingual environment must be
developed. A monitoring period should be the start. An evaluation of how legal texts must
be drafted is needed. Should legal texts be drafted by multilingual commissions together
in one language or in at least two language versions? Should all translations be made on
the basis of one original document or should all authentic language versions in principle
be able to serve as the source document for translation? Another option is a drafting process involving legislators from at least three different language and legal backgrounds that
359
360
Action Plan, 68.

Sacco, Riflessioni di un giurista sulla lingua, Rivista di Diritto Civile, 57, 1996.
109
represent quite different linguistic groups, such as German, Hungarian, and Italian, or
Polish, French, and Irish.
As there is currently no clear European legal language policy, the different drafting techniques should be monitored and be evaluated in order to improve the clarity and coherence of legal language in the multilingual context of the EU.
The struggle between legal and linguistic requirements
European integration cannot proceed without attention being paid to linguistic matters.
There is a clear need for a more coherent approach. From a legal perspective, a comprehensive solution would be preferable: a single all-encompassing codification constituting
one sweeping review resulting in one authentic and linguistically coherent text. This
would be the only way to avoid fragmentation of language use. However, such a solution
does not take into account differences in legal backgrounds and culture, and linguistic diversity, let alone diverging interpretations made by national judges. Keeping such a code
up-to-date will also be quite difficult.
For that reason, an additional or alternative route must be explored: minimum sectorspecific harmonization. In this incremental way for instance, first harmonizing sales
law, then insurance law, then tort law, etc. the use of a coherent European legal language will develop gradually and naturally. Citizens will have time to become familiar with
new terminology. They do not have to quickly acquaint themselves with an artificial legal
language with an enormous amount of legal terms. This process could be dubbed the cultivation approach.
Unfortunately, although the EU is aware of the problem of linguistic diversity within the
enlarging Union, adequate action is not taken. There is no institution on the EU level that
interacts with European lawyers, linguists, and citizens to train them and to encourage
them to express themselves in a language other than their native tongue. In addition,
there is no European Law Institute safeguarding a coherent legal language use.
Participation in the legal integration process
Nevertheless, in recent years the Commission has attempted to start an EU-wide discussion on European contract law involving interested parties and stakeholders through the
following documents: COM (2001) 398 final, COM (2003) 68 final, COM (2004) 651 final,
and COM (2006) 744 final. This initiative has so far not drawn any response from legal
linguists, and the replies that have come in do not consider language problems an obstacle
to an integrated European Contract Law and to effective or improved consumer protection.
110
The process of designing a European Contract Law started in 2001, so before the enlargement with twelve new Member States. These new Member States have almost entirely neglected the opportunity to submit requests for a better linguistic approach. It seems fair to
ask whether lawyers care enough about language, their main tool of the trade, to take care
of language problems.
Conclusion
In the EU, legal language is interpreted and translated every day, but even so a strategy for
a coherent approach is lacking. Recent efforts to strengthen the use of harmonized legal
terminology and legal language in all EU Member States must be seen in a critical light.
They are pure paper work and not a method on how to solve the problem. Hardly any official legal papers deal with the linguistic problems of an expanding Union.
A clear policy decision is needed in order to support and to maintain the legal and linguistic quality of European legislation. An interdisciplinary institution as a standard safeguard
and a collective memory would be advisable. Furthermore, legal education should pay
more attention to the use of foreign legal languages in the teaching process.361 At the very
least, optional courses should be offered in foreign legal languages. Students must be
trained in more than one legal language and must, as part of their academic curriculum,
be able to express themselves and to explain their own legal system in more than one language. Legal integration needs people with access to more than their own legal system.
Legal education should contribute to the European legal integration. It is to be hoped that
the CFR and its translations will contribute to the improvement of legal languages.
Literature
Bar, Christian von
A Common Frame of Reference for European Private Law Academic Efforts and Political
Realities, vol. 12.1 AMERICAN JOURNAL OF INTERNATIONAL LAW, (May 2008),
<http://www.ajil.org/121/art121-27.pdf>.
Bar, Christian von
Benevolent Intervention in Anothers Affairs, Edited by Study Group on a European Civil
Code, Sellier, Bruylant, Staempfli, Oxford University Press, 2006.
Barendrecht, Jansen, Loos, Pinna, Casco, and Van Gulijk
Service Contracts (PEL SC), Sellier, Bruylant, Staempfli, Oxford University Press, 2006.
On problems in legal teaching in a non-native language, see Viola Heutger, The Choice of Language in Legal Teaching at the
UNA, UNA Collection 2006, 99-106, Curaao 2007.
361
111
Beale, Hugh
The Development of European Private Law and the European Commissions Action Plan
on Contract Law, Juridica International, vol. X, 4-16, 2005.
Creech, Richard L.
Law and Language in the European Union: The Paradox of a Babel United in Diversity,
European Law Publisher, 2005.
Downes, Noemi, and Heiss, Helmut
Sprachregulierung im Vertragsrecht: Europa- und internationalrechtliche Aspekte,
Zeitschrift fr Vergleichende Rechtswissenschaft 98, 28-53, 1999.
Drobnig, Ulrich
Principles of European Law. Study Group on a European Civil Code. Personal Security
(PEL Pers.Sec.), Sellier, Bruylant, Staempfli, Oxford University Press, 2007.
Dievoet, Guido C.E. Van
Het Nederlands als wetstaal in Belgi in de negentiende en de twintigste eeuw, Pro
Memorie, vol. 5, no. 1, 96-118, 2003.
Engberg, Jan
Statutory texts as instances of language(s): consequences and limitations on interpretation, Brooklyn Journal of International Law, vol. 29, no. 3, 1135-1166, 2004.
Erp, J. H. M. van
European Private Law: Postmodern Dilemmas and Choices. Towards a Method of Adequate Legal Analysis, vol. 3.1 AMERICAN JOURNAL OF INTERNATIONAL LAW, (August
1999), http://www.ajil.org/31/art31-1.doc.
Fraser, Janet
The Discourse of official texts and how it can impede public service translators, Journal
of Multilingual and Multicultural Development, vol. 20, no. 3, 1999.
Giesen, Dieter
ber das Sichwundern, das die Rechtsvergleichung auszulsen vermag, Zeitschrift fr
Vergleichende Rechtswissenschaft 97, 227-239, 1998.
Groot, Gerard-Ren de
Language and Law, Netherlands Reports to the Fifteenth International Congress of
Comparative Law, 21-32, Antwerp/Groningen: Intersentia, 1998.
Groot, Gerard-Ren de
112
Legal Translation, Elgar Encyclopedia of Comparative Law, 423-433, 2006.

Grossfeld, Bernhard
Macht und Ohnmacht der Rechtsvergleichung, Tbingen, Mohr, 1984.
Heutger, Viola
Ein kohrenteres europisches Vertragsrecht, Jusletter, 17 February 2003.
Heutger, Viola
Law and Language in the European Union, Global Jurist Topics, vol. 3, no. 1, 2003.
Heutger, Viola
Ein gemeineuropisches Kaufrecht, Peter Lang, Frankfurt am Main, 2008.
Heutger, Viola
The Choice of Language in Legal Teaching at the UNA, 99-106, UNA Collection 2006,
Curaao, 2007.
Hesselink, Rutgers, BuenoDaz, Scotton, and Veldmann
Commercial Agency, Franchise and Distribution Contracts, edited by the Study Group on a
European Civil Code, Sellier, Bruylant, Staempfli, Oxford University Press, 2006.
Hondius, Heutger, Jeloschek, Sivesand, and Wiewiorowska
Principles on European Law of Sales, Sellier, Bruylant, Staempfli, Oxford University Press,
2008.
Lando and Beale
Principles of European Contract Law Parts I and II, The Hague: Kluwer International,
2000.
Lando, Clive, Prm, and Zimmerman
Principles of European Contract Law Part III, The Hague: Kluwer International, 2003.
Legrand, Pierre
Fragments on Law-as-Culture, Deventer: W. E. J. Tjeenk Willink, 1999.
Legrand, Pierre
What Legal Transplants?, D. Nelken and J. Feest (eds.), Adapting Legal Cultures, 55-70,
Oxford: Hart, 2001.
Legrand, Pierre, and Munday, Roderick (eds.)
113
Comparative Law: Traditions and Transitions, Cambridge: Cambridge University Press,

2003.
Lilleholt, Victorin, Ftschl, Konow, Meidell, and Bjranger Trum
Lease of Goods, Principles of European Law, edited by the Study Group on a European Civil Code, Principles of European Law, Sellier, Bruylant, Staempfli, Oxford University Press,
2007.
Lopez-Rodriguez, Ana M.
Towards a European Civil Code Without a Common European Legal Culture? The Link
Between Law, Language and Culture, Brooklyn Journal of International Law, vol. 29, no.
3, 1195-1220, 2004.
Mnzel, Frank
Lexicographical Musings The Variegated Language of Sales Law: A Modern Tower of
Babel, Uniform Law Review, 3, 642 et seq., 2003.
New Netherlands Civil Code: Patrimonial Law (Property, Obligations and Special Contracts) = Nouveau code civil nerlandais: le droit patrimonial (les biens, les obligations et
les contrats particuliers) = Nieuw Nederlands Burgerlijk Wetboek: het vermogensrecht
(zakenrecht, verbintenissenrecht en bijzondere overeenkomsten); translated by Peter
Haanappel and Ejan Mackaay, Deventer: Kluwer, 1990.
Oppermann, Thomas
Reform der EU-Sprachenregelung?, Neue Juristische Wochenschrift, 2663-2668, 2001.
Pozzo, Barbara
Harmonisation of European Contract Law and the Need of Creating a Common Terminology, European Review of Private Law, vol. 11, no. 6, 754-767, 2003.
Principles, Definitions and Model Rules of European Private Law
Draft Common Frame of Reference (DCFR). Interim Outline Edition, edited by the Study
Group on a European Civil Code/Research Group on EC Private Law (Acquis Group), Munich: Sellier Law Publishers, 2008.
Rthers, Bernd
Rechtstheorie, Munich: Beck, 1999.
Salmi-Tolonen, Tarja
Legal Linguistic Knowledge and Creating and Interpreting Law in Multilingual Environments, Brooklyn Journal of International Law, vol. 29, no. 3, 1167-1191, 2004.
114
Sacco, Rudolfo
Einfhrung in die Rechtsvergleichung, Baden Baden, translated by Jacob Joussen; the Italian original, Introduzione al Diritto Comparato, was edited by UTET, 2001.
Sacco, Rudolfo
Riflessioni di un giurista sulla lingua, Rivista di Diritto Civile, 57-66, 1996.
Schrder, Friedrich-Christian
Probleme der bersetzung von Gesetzestexten,
Strafrechtswissenschaft, vol. 117, no. 1,236-244, 2005.
Zeitschrift
fr
die
Gesamte
Study Group on a European Civil Code/Research Group on EC Private Law (Acquis

Group), Principles, Definitions and Model Rules of European Private Law. Draft Common
Frame of Reference (DCFR), Interim Outline Edition, Munich: Sellier Law Publishers,
2008.
White, James Boyd
Translation as a Way of Understanding Law, in B. Pozzo (ed.), Ordinary Language and
Legal Language, 61-81, Milan, 2005.
Official documents of the European Commission
Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on
certain aspects of the sale of consumer goods and associated guarantees.
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on
credit agreements for consumers and repealing Council Directive 87/102/EEC.
Brussels, 11.07.2001, COM(2001) 398 final
Communication from the Commission to the Council and the European Parliament on
European Contract Law
Communication from the Commission to the European Parliament and the Council A
more coherent European contract law: an action plan
Communication from the Commission to the European Parliament and the Council European Contract Law and the revision of the acquis: the way forward
Brussels, 08.02.2007, COM (2006) 744 final
Green Paper on the review of the consumer acquis
115
Cite as: Viola Heutger, Legal Language and the Process of Drafting the Principles on a European Law of Sales, vol. 12.2 AMERICAN JOURNAL OF INTERNATIONAL LAW, (October 2008), <http://www.ajil.org/122/art122-3.pdf>.
John Stanley Gillespie, Transplanting Commercial Law Reform Developing a Rule of
Law in Vietnam (Aldershot: Ashgate, 2006), 362 pp., ISBN-13: 978-0-7546-4704-1, GBP
65 (hardback).
A Case-specific Sociology of Legal Transplant Theory
One should always be careful when accepting an invitation to review a book without having
seen the book before and without knowing anything about the author. Having had the
pleasure of accomplishing two missions in Vietnam, one as a professor and one as a consultant helping shape a policy towards accession to a number of international conventions,
I thought I had some legitimacy to review Gillespies book. Now that I have read it, I realise
that not only has the book taught me much, but also that I knew very little about Vietnam
and nothing at all about the theories developed by scholars on transplanting law.
This book is more a book on the sociology of law than a law book, so to speak. Readers will
learn a great deal about the history of the Vietnamese legal system; about the different
forces which are at work in Vietnamese society and influence the law-making process;
about how these forces have helped craft a unique blend of top-down regulation and selfregulation; and, finally, about how foreigners should be careful in trying to impose on another society legal solutions which may have been successful in their own countries but
may not be adaptable in another environment.
In the book, a number of questions are left partially unanswered.
How long did the author live or has he lived in Vietnam, or, if he did/has not, how often
(and for how long) did he visit the country? Some clues can be found in the book. First, the
bibliography includes many references to literature written in the Vietnamese language
(whose titles are given in English), hence it may be supposed that the author has mastered
the Vietnamese language. Second, at least in Chapter 8, Gillespie refers to a survey of sixty
companies operating in five different industrial sectors through interviews with their managers in 2004 and 2005. This is probably the most fruitful part of the research, as it shows
how the beneficiaries of the legal rules view them, use them, or ignore them, and how they
may (or may not) adapt their behaviour to the changes.
Why was Vietnam chosen and why is it an interesting case? Again, pointers can be found in
the book itself. First, Chapter 2 describes Vietnams long and troubled history in constructing its legal system as a result of the many foreign influences. The French colonial period is
covered in a few pages only (pp. 49-54), and elsewhere in the book its legacy does seem to
116
disappear altogether. For instance, the long bibliography provided by the author does not
appear to contain any references to French literature. It is probable that the authors focus
was on recent transplants of American or common law origin. Second, it is probably the
quasi-unique mixture of a socialist political system and newly recognised liberal values
which makes the creation of the current legal system a real challenge as seems also the
case in mainland China, if on a more modest scale considering the size of the country.
With regard to legal transplant theory too, the informational value of Gillespies book is
considerable. Here again, the learning curve was steep, as I had been unaware of the sizeable body of literature written on this issue. Not only is Gillespie familiar with this literature, he also aids the reader with numerous examples borrowed from commercial law,
which is the focus of his study. Through the legal transplant paradigm, his study is also of
relevance to the area of globalisation, presenting a cortege of competitive models (even
though some authors he quotes claim that there is no competing model to the US model)
and the imperialist-like approach of western countries when they provide legal help.
To conclude, I can recommend Gillespies book not only for the information it provides
about the Vietnamese commercial legal system, but also for its nuanced analysis of the legal transplantation theories and their implementation in the particular case of Vietnam.
Catherine Kessedjian
Professor of Law
University Panthon-Assas Paris II, France
117

DOI: 10.989765/2016.5.675.1
The Legal Aspect of Ensuring the Freedom in Modern

Society
Garib Allahverdiyev*362
Abstract:
In this article social and philosophical analysis of freedom and curicial role of law system
in its realization were investigated. As we konw, the law system that formed in certain
socity are somewhat different and this point affects the realization of freedom. In this
topic, states and law organizations role are very important because these kind of
organizations define the prohibited actions and behaviors that stabilize society. One of
main purpose of analysing is correctly identifying the correct ratio of freedom and
equality. So, in modern socity the main issue is to liberate each member of the society from
inconsisted social restrictions and ensure their development as personality.
Key words: political institution, legal freedom, national economy,welfare.
Investigation the law systems role in society one of the main aspect of social and
philosophical analysis of freedom. In modern times the importance of this topic are
continuously increasing but it has not been investigated enough. The legal system that has
been established in any society (state, government agencies, law enforcement agencies etc)
creates opportunity to enforce freedom and ensure its realization according its nature and
level of development.
The role of liberty is manifested in the following main two areas of law. First one is that
political power structures and law enforcement agencies will ensure the implementation of
laws and other regulations and also they try to enlarge moral aspect of compulsory legal
norms. Their work in this direction creates favorable conditions and opportunities for
realizing freedom in society.
362*
Nakhchivan State University, Nakhchivan, Azerbaijan, Ph.D. Candidate of philosophy, Faculty of Social Management and Law,
Azerbaijan Republic.
118
On the other side, the activity and improvement of legal system greatly affects to the
development of justice sense and legal thinking and legal culture. This process accompany
with the improvement of freedom conscious of people and their freedom activity.
The effect of current legal system to the realization of freedom appears in other side of this
phenomenon.With other words, state and law organisations determine peoples rights and
freedom, prohibited or allowed actions and behaviors in certain activity. Breaking certain
framework accepted as prevention of others right. This direction is very important because
it does not allow anarchy or tyranny and try to determine the correct ratio of freedom and
equality also try to prevent inequality and injustice in society. Law systems effect to the
inner side of freedom is more important. The main point is here the role of law in the
development of moral freedom. This shows itself in the improvement of legal
consciousness and increasement of moral aspects in law.
The specific side of this is people regulate their actions and behaviour with morality and
values not with restrictions that based on violence. Freedom and responsibility appears
here as united and this is the main side of legal state. The role of boths sides will steadily
increase if we approach law as combination of norms that express freedom. Georg Wilhelm
Friedrich Hegel said that law and freedom had been in interaction and law had been the
positive existence of freedom[1].
The close connection between law and freedom show itself following points. If we approach
human from the point of legal relations we will see human here as independent being that
have social-moral essence and certain responsibilities. Each individual has this status and
their freedom that described in official documents must be realized in real life too. We can
see this clearly from that perception the idea of freedom in society, nations readiness level
for living in free society are important indicators of legal mindset.
It is clear that, the essence of law expressed in its freedom in every society and we can
accept freedom as law. Russian lawyer V.Malahov said that inner legal freedom of people
shows itself in humans attempt and persistence in implementation of to social-moral
values[2].
Other point that makes freedom and law closer is their concrete or specific nature. With
other words these norms direct to stabilize real relationship between citizens of society not
abstract human ideal. Legal norms and other laws defend individuals from tyranny and
plays the role of a real guarantee of their rights and freedoms. In this sense, the limitation
of this persons freedom by state is normal if individual breaks law in his or her action. So,
in fact, laws dont determine the extent of the freedom in the contrast achieved level of the
freedom expresses the borders of law. This indicates that law and state are the a true
defender of freedom. In this meaning we can accept the following definition that was given
in legal books: According to legal and historical bases law is political institution that covers
119
people social life, determines and provides the opportunities for realization of freedom[3].
Law as a mechanism regulate and determine relationship between individuals and state. It
is impossible to imagine the real freedom beyond them. Law not only shows the borders of
human freedom but also prevent the violations. When the latter case rendered itself, the
state would fulfill coercive sanctions for restoring corrupted rights and freedoms. It should
be noted that the interior connection of the state and the legal system has linked with the
idea of real freedom and this idea is not so new in philosophy. In this regard, J.Lockes
following idea is interesting: Rules that are common to all permanent life are given to
people by the legislative power of the community[4].As is well known, each member of the
society try to get freedom and also try to realize social and political freedom for esurance
their free development accordance to their beliefs and morals. In some sense, this should
be accepted as natural request. However, for realization of this process subjective desire
and effort are not sufficient. First of all, society have to be real conditions otherwise
freedom can not exceed the border of benevolent. Compliance level between two
mentioned sides (individual requests and the real level of development of state ) express in
state laws and regulations. In this regard we can agree with the thoughts of A.Spirkin:
Law is a necessary condition for the existence of free human in society. If you want to be
free you have to limit your freedom for the others sake [5]. So, the effect of law sistem to
the development of freedom is bilateral process in its content. Government and law not
only prepare and develop obligatory standarts for all members of society and also ensure
their implementation with force. On the one hand, part of freedom has been restriced with
taking all people in same situation on the other hand freedom has been protected [6].The
freedom that given by society determine in the scope of the legal norms is very important
because this limits the possibility of abuse. Also with this way could be prevented the
damaging possibilities of other individuals freedom by anybody. As can be seen, the real
incarnation of freedom in the life of individual and whole society is based on the law... In
this sense, we can talk about freedom where exist law.
Civil-anthropological reorientation of the state appeared in New era and today
it can be seen more clearly. It is particularly important in ensuring of freedom
by state and government. In this sense, V. Barulin wrote: The main point of
civil-anthropological reorientation of the state is its direction to the protection of
the rights and freedoms of people [7].
Strengthening of the above-mentioned trend is not accidental in modern times. This is
conditioned by the fact that, today there is great need to the state in order to realize their
liberty in all spheres of human activity. There are some wrong ideas that legal norms and
the law create obstacles to the realization of freedom. There is no scientific basis for this
view. In fact, the legally established norms not only goes against the freedom but also
enshrined in the legal point of fact, but also provides the necessary conditions for its
implementation. Karl Marx said about this point: Legally adopted freedom exist as law in
the state. Liberty is not against legal action as law is not punitive measures against liberty
120
[8].Legal norms that appear in the form of law is regulated and ensured by government
agencies. P.V.Alekseev wrote: There are two purpose for following mandatory
requirements that expressed in law: providing the general welfare and personal freedom of
citizens [9].
Lagal system will improve according to the development and evolvement of society. An
important aspect of the changes in the same direction is improvement of implementation
and expansion mechanism. In this regard it should be noted that, qualitatively new stage
began between the state and the realization of the rights and freedoms of persons after our
country had gotten independent. Its characteristic feature is the continiously increasing
role of the state and the law as guarantor of freedom. Currently, this is one of the conutrys
curricial inner policy. Our national leader Heydar Aliyev determined the main direction of
inner policy and said: The inner policy of The Azerbaijan Republic consist of building a
democratic legal state, creating a market economy, carrying out economic reforms and also
create appropriate environmet for the realization of nation welfare and freedom [10].
Currently, rights and freedoms of individual is guaranteed by economic, political and legal
point of view by state. The significant progress in the national economy, development of
international projects, the improvement of social welfare and culture, the balanced foreign
policy strategy and all these counted areas create great opportunity for development of law
in these sections. In this respect, the activity of state and law enforcement authorities in
overthrow the legitimate government in the first years of independence, beating off civil
strife and anarchy atmosphere, elimination of illegal armed groups and criminal gangs
meant the protection of rights and freedom of people.
The adoption of the Constitution in 1995 create new stage not only in reinforcing national
state system but also in the the development of the rights and freedoms of citizens. The
evidences of this that about 50 articles of the Basic Law covers these problems.
Characteristic thing, these rights and freedoms are not a formality. Government and law
enforcement agencies that operating in the country ensure the real implementation of
these laws. Any obstacles and challenges that citizens may face are resolutely eliminated.
All these prove that, the opportunities and real guarantees just for realizing citizens
freedom and these create in the legal state building process. Article 26 of the Constitution
of the Republic of Azerbaijan written: The State shall ensure the protection of human
rights and freedoms [11].It should be noted that, state is not only ensuring the realization
of peoples provisions but also puts all them in the basis of its activity. In the 12 th article of
the Basic Law written: Ensuring human and civil rights and freedoms is the main purpose
of state [12]. This issue should be noted that: The rights and freedoms of citizens are not
stable, their scope and content are expanding and getting new forms. For instance,
ensuring active participation of each citizens in political sphere and process and
improvement of the democratic election system for this purpose are the main directions.
121
Legal system opens comprehensive opportunities for the realization of freedom.

Implementation of state forced system for protecting freedom and rights in our country
covers educational effects, of course except in some cases (treason, espionage, intentional
homicide etc.) So, coercion and punishment in most cases turns against individuals
tyranny and carried out in the general public interest. Therefore, it gets ethical and
humane meaning. The successes of the leading countries of the world and also our
countrys experience that gained in this area have been proving that democracy is not
anarchy and chaos. This can be exist and expand only in accommodation where exists
social and political stability. At this moment appears an important point. The law itself has
not provided the real-rights yet. The last one expresses its real meaning when it
implements the regulator function between people in different spheres of freedom. If there
was mismatch between the above-mentioned parties the real freedom of citizens would
suffer from this. The supporters of free law mentioned the importance of this point and
said that the written law is abstract but life is concrete and shifting. The main issue is to
practice writing laws. The law is still is not active right, there have some gaps. Therefore,
real law appears in the context of public relations, in the sense of justice, emotions and
psychology and also in daily activities of members of the public[13]. It is clear from that
idea, if the freedom that expressed in law was not completed by real content it would stay
as formal law. The effect of law to the freedom shows itself in creation opportunity for the
activity of organisations. These public organizations that cover various areas appear as realizations of right and freedom of individuals in a democratic society. Today there are more
than 50 political parties, hundreds of socio-political organizations and associations (nongovernmental organizations), trade unions, cultural, trade, free trade unions, businessmen,
religious, confessional organizations in our country. This does not only mean that social
and political life of Azerbaijan society is pluralistic and various but also means the implementation of civilians freedom and rights. The actions that done by government for improvement of organizations and associations prove that our state is the real defender of
liberty and law. Mentioned side is important because the existence of numerous social organizations, parties, various foundations, associations and societies in Azerbaijan creates
basis for formation civil society. These organisations cooperate with state in the solvation
of social, political, economic and cultural problems and this is the main directions of large
sections of the people in the realization of their rights and freedom. According to the
above-mentioned point, formation of civil society creates favorable conditions for the realization of freedom. This is explained by the fact that civil society is based on the unity of
human rights and freedoms. It is no coincidence that I.Kant said that civil society had three
following principles: freedom of all members as human, as civil and their equality with
other members [14].
When we mentioned interaction of law and liberty we have to remember that if we
approached from purpose side second part would be more important. So, understanding
level of liberty in society, improve the level of law and the legal system are important
indicators. That is why, in every developed county the peoples freedom should be
122
developed parallel with public awareness and evolution of legal sense. Otherwise, neither
liberty can express its adequate meaning nor legal norms can fulfill the their regulatory
role. If we approach from this side, we have to remind that after our country got
independence the changes affected the development of peoples mind and expansion of
freedom that based on national and moral values. Generally, legal norms and laws are
collection of social norms which defended by government as enforcement methods [15]. As
we saw from this defination, legal norms carries out the compelling will of the
state's.People's freedom of expression within these norms in certain limits.
Some theories (Marxism, Anarchism) have exaggerated the role of state as social
institution which limited peoples liberty. For example, according to marxism the meaning
of state is the domination of one group over another. The supporters of anarchism were
more strict because they said that state was the main couse of disaster in society. These
kind of thoughts are not real because government puts liberty in certain frame and it
doesnt mean state limits freedom, on the contrary it doesnt allow others break this
liberty. So state is the provider of liberty. Following facts created and forced certain
misconceptions about legal norms. Untill recently, sometimes people have been punished
for simple actions like not paying their debts. All these actions only restric peoples liberty.
It is not a coincidence that some famous scholars including N.Winer said that it did not
comply with the aim of freedom [16]. Accoring these discontents The European
Convention on Human Rights have been added some articles about forbiding to get people
to prison for their debts since 1963. By the way, we have to mention that it is important for
our country specially during formation of market relations because during these period as
the results sharp business competition people can take a lot of money and be in owed
position. What is why, giving so strict punisment for debts will restrict majority of peoples
liberty.
So, legal norms and totally law system contains freedom and shows the opportunity for
realizing it.The idea of the inviolability of human rights and freedom has been mentioned
several times in Western classical philosophical. For example, Thomas Hobbes said that
freedom was not prohibited by law, and also freedom was the opportunity that allowed you
did everything as you like and didnt do the things that law didnt force you [17]. According
to F.Schelling common law is a condition of freedom because without it there is no
guarantee for freedom [18].
The current legal system also affects to strengthen the legal responsibility with realizing
freedom. The last one is the important measure of freedom. This is explained by the fact
that law is not only measure of legal freedom but also measure of legal responsibility.
Freedom is subjective necessity as previous two categories (the legal freedom and legal
responsibility) [19].
123
The legal responsibility has normative essence and it relys on state arbitrariness.It mutual
operates with other types of social responsibility (including moral).Spiritual- moral
responsibility is more important in terms of intimacy with freedom. It is a volunteer, based
on public opinion, man's inner world, beliefs and values of expression.Strengthening the
legal responsibility affects spiritual- moral responsibility and implementation of people
freedom. Today, responsibility is increasing in moder society and this stimulate peoples
social activity.
Mentioned two items (responsibbility and activity) are main indicators in increasing of
freedom. The social responsibility and social activity that based on perceived necessity
create special coordinates that determines the volume of free activity[20]. All these fact
mentioned in Universal : Every individual has rights to implement his or her cultural,
social, economical righs according societys structure and resources as part of this society[21]. I.Berlin who had great role in the creation of the modern freedom conception
divided freedom essence to negative and positive parts. First one means that individuals
are free in their activities to the extent interference of others. Second, in posetive meaning
individual's life and their decisions are not depend on others on the contrary it depends on
men themselves. These are the ones that they have the thought and action and they are
responsible for the actions[22]. In any society, the rule of law and the legal system serves
to the realization of the general public purposes. Its main function are to establish order in
all aspects of community life and ensure harmony.If these duties are unable to carry out
their task, this means that the legal system and determine there is a discrepancy between
the norms of public life. Normal development of the society,realization of the rights and
freedoms in the interests of citizens necessitate the overcoming this discrepancy as soon as
possible.
In this process it is very useful to refer to the practice of other countries and the whole
experience.But in this case, if we use foreign coutries legal and the social environment
experience certain aspects of these societies must be considered. May be, legal norms that
is able to fulfill the effective features in certain society.
It is possible that, some legal norms may be successful in certain society but unsuccessful
in other society.Conditions, historical and national features are very essential.There should
be a mentioned that state is not an abstract entity.Each state as well as the people who
created it has psychological stereotypes and values[23].
In this regard, the independent states that appeared in territory of the former Soviet Union
created didn't have the same conditions and opportunities for freedom and opportunities.
In particular, with respect to Azerbaijan, our history has been rich with historical and
national customs and also full of struggle for liberty.
124
In addition, the realization of national independence and freedom here

then encountered a number of difficulties.
The ethnic diversity of the population (91 various nations and groups representatives are
living), Nagorno-Karabakh conflict, consequences that appeared as the result of this problem and other factors created accommodation for strengthening restriction sides of law
and government. However, science-based and sagacious policy pursued by the government
would improve the country's international reputation and also would help to successful
salvation of these problems. Another group of mentioned the difficulties are characteristic
features of transition period.
When analyzing the role of the legal system in the realization of freedom to note such a
moment is very important. Rights and freedoms that declared in the country have not
meant their totally realization yet. Continuously increase of their legal awareness and legal
culture are vitally important for the favour of civilians right. That is why, people have to be
informed the real content of the rights and freedoms, their usage ways. Otherwise, realization of their rights and freedoms of citizens are getting considerably comprehensive. The
above-mentioned situations have also weakened the force of law systems power and people cant use these kinds of achievements. At a very important part of strengthening the
national statehood is to free each member of the society from unreasonable social restrictions and provide their improvement as free civilian. Achievements that have been
gotten during the establishment legal government deepen and broaden the realization of
this function. This proves that, the state and the legal system reveals their fully nature as
the embodiment of human rights and fundamental freedoms.
Literature:
1. . . .: , 1990.- p. 90
2. .. . .: , , 2002.- p. 173
3. ..---: . .: , 1999.-p. 450
4. . : 2- . .2,.: , 1960.p.16-17
5. .. . . .: , 2008.-p. 725
6. / . .. . . 1, : , 2016.-p. 323
7. .. . : -, 2002.-p.160
8. , . in 3 Vol. Vol.1, :,
1967.-p.62
9. .. . : , 2005.p.-105
10.Heydar Aliyev. Azerbaijan at the turn of the twenty-first century and the third millennium. Baku University publishing, 2001.-p. 90-91
11. The Constitution of the Republic of Azerbaijan. Baku, 2005.-p. 10
12.The Constitution of the Republic of Azerbaijan. Baku, 2005.-p. 7
125
13. - . / . ... : , 2001.-p.317-318

14.. : 6-. .4, : , 1965.-p.79
15. . .: , 1999.-p.24
16. . . : , 2001.-p.107
17. . : 2-. .1, : , 1989.-p.49
18. .. : 2- . .1, .: , 1987.-p.456
19. .. . :, 2003.p.123
20. / . .. .T. 2, : , 2014.-C.367
21. Universal Declaration of Human Rights 10 December 1948. New York: Center for
Human Rights, 1993.-p.2
22. . . . .: .
2001.-p.317-318
23. / . .. . T. 1, : , 2014.-p.33
126

DOI: 10.989765/2016.5.9.39
International Law in Domestic Systems

E.A. Alkema363
Introduction
The Netherlands have emerged as an independent State from Habsburg rule after
separation in 1581 from Spain. Over time it developed into an independent republic uniting
seven provinces in a confederation structure.
During a turbulent period from 1795-1813 it successively went through the phases of a
unitary republic, a kingdom and an integral part of the French empire. In 1813 it revived as
a kingdom and independent State and, from 1814-1839, was united with present-day
Belgium. Gradually, it became a constitutional monarchy. Over time the Netherlands also
evolved from a colonial power into a post-colonial State.
The Kingdom of the Netherlands maintained special constitutional ties with its former
colonial overseas territories which were laid down in the 1954 Charter of the Kingdom
(Statuut). Nowadays the Kingdom consists of three autonomous entities or Countries
(Landen): the Netherlands (sometimes referred to as the Kingdom in Europe) and the
Caribbean islands, Aruba and the Netherlands Antilles. In the near future the latter will
probably be split up into two autonomous territories, Curaao and Sint Maarten (SaintMartin), whereas three smaller islands, Bonaire, Sint Eustatius and Saba will be politically
integrated into the Netherlands.
The Kingdoms internal relations are governed not only by domestic law but by
international law as well, particularly so, as far as the right to self-determination of the
overseas territories is concerned. In international relations the Kingdom acts as the legal
363
Professor of New Jercy University. Especialist international of Law Department.
127
entity exercising in particular the treaty-making power. Occasionally, the Kingdoms

twofold constitutional structure tends to complicate matters. In this paper we use the term
the Netherlands as indicating the subject of international law. Where the relations
between the Countries (Landen) is concerned we will refer to the Kingdom.
Running ahead of what will be addressed in more detail later, the attitude vis--vis
international law in the Netherlands could and can be characterised by a relative openness
of the written and unwritten constitution towards international law. In doctrine, the
Netherlands system has been qualified as moderately monistic. In a recent summary of the
present-day State practice the Government has endorsed this view. It explained that term
in pointing to the fact that the Constitution sets some conditions for the internal effect of
international law such as Parliamentary approval and official publication and does not
treat all sources of international law equally.364
Further, as a typical development of foreign relations can be mentioned what has been
called its democratisation. Parliamentary approval increasingly has become a
precondition for the internal effect of international treaties. The last two centuries saw an
extension of the categories of treaties subject to such approval at the expense of the powers
of successively the King and the Executive.
Constitutional and Legislative Texts
Provisions of the National Constitution referring to International Agreements, Treaties, Customary International Law and other Sources of International Law
International relations are dealt with in the Constitution under subsection 2 of Chapter 5
Legislation and Administration, entitled Miscellaneous Provisions the following articles
are relevant here:
Art. 90 The Government shall promote the development of the international rule of
law.
Art. 91
1. The Kingdom shall not be bound by treaties, nor shall such treaties be denounced
without the prior approval of the States General. The cases in which approval is not
required shall be specified by Act of Parliament.
2. The manner in which approval shall be granted shall be laid down by Act of
Parliament, which may provide for the possibility of tacit approval.
3. Any provisions of a treaty that conflict with the Constitution or which lead to
conflicts with it may be approved by the Houses of the States General only if at least
two-thirds of the votes cast are in favour.
364
See Doorwerking internationaal recht in de Nederlandse rechtsorde (Governmental note on the effect of international law in
the Netherlands legal order), Parliamentary documents 2007-2008, 29861 No. 19, p. 3.
128
Art. 92 Legislative, executive and judicial powers may be conferred on international

institutions by or pursuant to a treaty, subject, where necessary, to the provisions of
Art. 91 para. 3.
Art. 93 Provisions of treaties and of resolutions by international institutions which
may be binding on all persons by virtue of their contents shall become binding after
they have been published.
Art. 94 Statutory regulations in force within the Kingdom shall not be applicable if
such application is in conflict with provisions of treaties that are binding on all
persons or of resolutions by international institutions.
Art. 95 Rules regarding the publication of treaties and decisions by international
institutions shall be laid down by Act of Parliament.
These articles are followed by specific provisions (Articles 96-102) on declaring the
Kingdom in a state of war, conscription365 and, generally, on the military; they are less
relevant here.
Finally, mention should be made of Article 120 restricting the judiciarys competence to
review:
Art. 120 The constitutionality of Acts of Parliament and treaties shall not be reviewed
by the courts.
The quoted articles of the Constitution lend direct effect or to borrow a term from US
constitutional law self-executingness to some provisions of international law i.e. of
treaties and of decisions of international organisations on the condition that they are
binding on all persons. Such provisions of international law rank high in the hierarchy of
legal norms; they enjoy priority over Acts of Parliament as well as over the Constitution
itself. Besides, Article 120 precludes the courts from reviewing the constitutionality of
treaties, a question which is of special relevance with regard to treaties deviating from the
Constitution and thus requiring under Article 91 para. 3 a qualified majority for approval.
The Act referred to in Articles 91 paras. 1 and 2 and 95 is the (Kingdom) Act of Parliament
on (parliamentary) approval and publication (Rijkswet goedkeuring en bekendmaking
verdragen).366 It elaborates the conditions for and exceptions from parliamentary approval
of treaties and also lays down some rules about the publication of treaties and of some
decisions of international organisations in an official journal called Tractatenblad.
The Constitution thus refers explicitly only to treaties and decisions of international
institutions (i.e. organisations). It is silent on customary international law, general
365
366
This provision is nowadays merely hypothetical since conscription has been terminated as from 1996.
Staatsblad (Official Gazette) (hereafter abbreviated as Stb.) 1994, 542.
129
principles of law, the decisions of international tribunals and international texts of a

declarative nature.
Inter alia in its judgment of 1959 to be discussed in Section 4 on customary international
law below the Supreme Court has sketched roughly the contours of the courts
constitutional competencies with respect to international law, in general. This judicial
attempt to fill the gap in the written Constitution is neither perfect nor hard. Yet, it has
been accepted as valid and legal practice conforms to it.
It boils down to the following. The application of self-executing provisions of treaties and
decisions of international organisations generally excepted, the courts ought to avoid an
open confrontation with the parliamentary legislature; they should not review Acts of
Parliament and squash them for non-conformity with international law. The underlying
idea, apparently, stems from the implied constitutional supremacy of Parliament as the
democratically elected legislator. Sometimes even self-executing international law may be
denied that effect. Such is the case when the courts prefer to abstain as will be explained
in 2.3 below.
That being said, international non-self-executing law from whatever source, of course to
the extent that it is fit for judicial application, may produce all sorts of effects. These effects
range from mere relevancy to great authority and from recommendatory to fully legally
binding effect. In applying such international law the judiciary has the power to review
delegated statutory law but not Acts of Parliament. The situation is different for the
administration and the legislature which are under the international and constitutional
obligation to comply with international engagements even if they are not cast in selfexecuting form.367 A complicating factor in this respect is that the latter obligations of the
administration in some circumstances may subsequently as yet permeate into the case-law
and become subject to judicial review viz. in tort actions against the authorities for noncompliance with international law.368
Legislative Provisions calling for the Application of International Law within
the National Legal System
There are several statutory provisions about the application of international law. The most
important ones are: Article 13a of the Wet algemene bepalingen (General Provisions
Kingdom Legislation Act of 1829) (Stb. 28) lays down:
The courts jurisdiction and the enforceability of judgments is subject to the
exceptions recognised in international law.
International law in this provision is considered to extend to all sources of international
law including customary international law, general principles of law and decisions of
international tribunals. It excludes notably the courts jurisdiction with regard to acts of
367
368
So Governmental note (supra note 1), p. 5.

Fleuren 2004, p. 304.
130
State and has been elaborated in Article 3 para. 3 of the 2001 Gerechtsdeurwaarderswet
(Bailiffs Act).369 A bailiff is not to enforce a judgment if he has been informed by the
Minister of Justice that the he wishes to stay the enforcement of a court order because such
enforcement would run contrary to obligations of the State under international law.
Similar provisions are to be found in the Criminal Code and the Code of Criminal
Procedure. Article 8 of the Criminal Code stipulates:
The applicability of the previous Articles 2-7 is subject to the exceptions recognised in
international law.
The Articles 2-7 concern especially the territorial scope of the Criminal Code. Further,
Article 539 Section (a) (3) of the Code of Criminal Procedure reads:
The powers conferred under the provision of this Title can be exercised only subject
to the law of nations and the rules of inter-regional law.
This section of the Code establishes to what extent the powers in Title VI (A) relating to
criminal procedure outside a courts area of jurisdiction (including jurisdiction for seizure
on the high seas), can be exercised when rules of international law and the rules in force
between the constituent parts of the Kingdom are involved.370
In both provisions international law is to be understood as international law originating
from any source, not just treaties or decisions of an international organisation.
The Algemene Wet inzake rijksbelastingen371 (State Taxes Act) in Articles 37-39 contains
some provisions for the prevention of double taxation. Article 39 provides specifically:
In cases where international law or in the opinion of the Minister of Finance
international usage (in Dutch: gebruik) so requires exemption of taxation is granted.
Our Minister is authorized to issue further regulations on the matter.
Again the scope of the provision is comprehensive: international law from any source.
Besides, the notion of usage is generally understood to be wider than customary
international law; it includes also unilateral practices of the Netherlands State or of its
administration.
The Wet internationale misdrijven (Act on international crimes) of 19 June 2003 (Stb.
270) also frequently refers to international law with respect to international humanitarian
law. The 1922 Wetboek militair strafrecht (Code of Military Criminal Law) (Stb. 1352), in
369
370
371
Stb. 2001, 70. A similar earlier provision, Art. 13 of the Regulations for Bailiffs (Deurwaardersreglement), had been applied
by Supreme Court 25 November 1977 (t Hart/Helinski), NJ 1978, 186; see Erades 1993, p. 633; see also President Judicial
Section Council of State 24 November 1986, Kort Geding, 1987, 38 (see also Section 4.2 infra).
See Meijers & Siekmann 1982, p. 143-156 especially p. 145. See also the Supreme Courts judgment in this case of 25 May
1993, NJ 1993, 784 8.1.1.
Of 2 July 1959, Stb. 301 as amended.
131
Article 38, mentions the laws of war in connection with impunity, especially, of the
military.
Federal Systems: the System of the 1954 Charter for the Kingdom of the Netherlands
As mentioned in the Introduction the Kingdom (i.e. the Netherlands in Europe and the
Caribbean overseas territories) has an uncommon structure; it is neither federative nor
confederative in the strict sense. Recently it has been described as a cooperative structure
or constitutional association since it is more of a procedural device for the Dutch organs
to consult with the Netherlands Antilles and Aruba before acting on their behalf than a
body politic encompassing all elements and performing the traditional activities of an
ordinary State.372
In matters of international law the Kingdom acts as an indivisible single legal entity
according to Article 3 para. 1b of the Charter, the functions as a subject of international law
being exercised mostly by the authorities of the European mother country.
With regard to formal acts such as treaty making and the membership of international
organisations, however, the Charter contains specific rules (Articles 24 ssqq.). The gist of it
is that the Kingdom formally has the monopoly of conducting the international relations.
However, the separate entities (i.e. motherland as well as the overseas Countries) may take
considerable influence on the material contents of the international obligations to be
engaged in, particularly so, where autonomous matters (not belonging to the Kingdom
affairs) are concerned. Agreements with other powers and with international
organisations affecting an overseas Country shall be submitted to its representative
assembly. The overseas Countries of the Kingdom have the opportunity to opt in or out
international agreements, especially those dealing with economic or financial matters.
Article 28 even enables the Antilles and Aruba to accede to separate membership of
international organisations. Moreover, these territories have been associated with the
European Community under Part four of EC-treaty as overseas countries and territories.
The above quoted Articles 90-95 of the Constitution also apply to the Kingdom in virtue of
Article 5 para. 1373 and Article 3 para. 1b of the Charter; the latter qualifying foreign affairs
as an affair of the realm. This implies inter alia that provisions of international law which
may be binding on all persons take priority even over the Charter of the Kingdom.
There is no special court charged with adjudicating any conflicts between international law
and the law of the Antilles and Aruba. However, the Netherlands Supreme Court (Hoge
Raad) is in civil, criminal and fiscal matters as is the Council of States judicial branch
(Raad van State Afdeling bestuursrechtspraak) in other administrative law matters
acting as a cassation court (French: cour de cassation) and applying the law of the
372
373
See, generally, Hillebrink 2008, p. 183-206.

Art. 5 para. 1: The Kingship and the succession to the throne, the organs of the realm referred to in the Charter, and the
exercise of royal and legislative powers in affairs of the realm shall be governed, if not provided for by the Charter, by the
Constitution of the realm.
132
Country involved (i.e. Antillean and Aruban law). Thus, although the statutory substrata
are not the same, it is unlikely that the judicial methods and practice of applying
international law (discussed in the following paragraphs) will differ with respect to
Antillean and Aruban law. The more so, because the just quoted provisions of the
Constitution apply equally to the overseas Countries.
Treaties and other International Agreements
Definitions
The Articles 93 and 94 of the Constitution cited above treat the self-executing provisions of
treaties and decisions of international organisations on an equal footing. The treaties will
be discussed here, whereas the decisions will be discussed below in section 3.
The Constitution refers to verdragen (i.e. treaties) in order to ascertain that irrespective
of their designation formally and materially the same instruments are meant as in
international law. This qualification is of importance in the first place for Parliament, since
in principle a treaty needs to be approved as a condition for being binding on the
Netherlands State. When approved by Parliament there is little or no reason for the courts
to still question the qualification as a treaty. Besides, Article 120 of the Constitution
precludes the courts from reviewing the qualification given by the Government and
Parliament and from deciding for their part the nature of an international text under
domestic law.
A treaty which merely implements another treaty does not require parliamentary
approval.374
Nevertheless, on one occasion, the Government gave in to political pressure and submitted
a treaty, implementing a treaty approved by Parliament, to Parliament for approval. It
concerned an agreement with the USA about the deployment of nuclear weapons on Dutch
territory. The Government did so in order to rally more democratic support.375
In order to be applicable the treaty must have been duly published in the Tractatenblad
(the official journal containing treaties and other international documents). It is for the
courts to test the publication.376 With that formal exception they will as a rule rely on
international law for the interpretation and application of a treaty.
It is, particularly at the occasion of the Constitutions revision in 1983 that, both in
doctrine and administrative practice (but not so much in case-law), the distinction between
legally binding and legally non-binding international texts has been elaborated. With
regard to the latter there is a further distinction, though not a very sharp one, between
international policy agreements and international administrative arrangements. The
former are usually referred to as memoranda of understanding. They commit politically
but cannot be held in law against the State. The term international administrative
374
375
376
Art. 7 b of the 1994 Kingdom Act on (Parliamentary) approval and publication.

See Alkema 1984, p. 307-331, especially p. 321.
See Hoge Raad (abbr. HR) (Supreme Court) 24 June 1997, Nederlandse Jurisprudentie (NJ), NJ 1998, 70.
133
arrangements is used for engagements entered into by e.g. the Government or a Cabinet
Minister with a foreign counterpart. Here the demonstrable intention of the authorities
either domestic or foreign is required for their non-binding character. Otherwise such a
document is deemed to be a treaty.377 378 It is likely that the courts, in line with this
approach of doctrine and administration and, in similar circumstances, will accept the
binding force of such an agreement.
The upgrading of an administrative arrangement or any other originally non-binding text
does not necessarily imply that parliamentary approval would be needed, as yet. The 1994
Kingdom Act on approval and publication in Article 7 lit. b provides that agreements for
the implementation of approved treaties do not need to be approved themselves unless
Parliament decides to the contrary (Article 8). This seems most practical since
implementing treaties and administrative arrangements are often hard to distinguish.
Effect of Ratified Treaties
Ratified treaties that have been explicitly or silently approved by Parliament and have
entered into force do not, as far as self-executing provisions are concerned, need special
acts of incorporation provided they have been duly published.
On the other hand, implementing legislation is needed to make the non-self-executing
provisions applicable by the courts. If and to the extent that implementation might
encompass (elements of) self-executing provisions such implementation does not,
however, preclude the courts from testing the implementing domestic statutory law for
conformity with the original treaty. Generally, implementation by legislation does not
create an irrefutable presumption of non-self-executingness because the legislature often
leaves it explicitly or implicitly to the courts to consult the travaux prparatoires and
other relevant data in order to interpret and apply properly the domestic legal texts
implementing a treaty.
The Doctrine of Self-executing and Non-selfexecuting Treaties
Since the Constitution embraced in 1953 a doctrine of self-executingness the courts are
inclined to adhere to that doctrine.379 The criteria taken into account are a mixture of
international and domestic law. So self-executingness is not esteemed to be entirely
dependent on the intention of the States parties. In the leading case the Supreme Court
considered that it was not relevant whether the
States parties intended to recognise the direct effect of Art. 6 para. 4 of the European
Social Charter, since neither from the text nor from its travaux prparatoires it could
be inferred that such effect had been excluded. In those circumstances, according to
377
378
379
Fleuren 2004, p. 149. See also Alkema 2008, p. 184-186.

HR 7 November 1984, NJ 1985, 247.
Buergenthal 1992, p. 307-400, especially p. 352-353.
134
Netherlands law, only the contents of the provision is decisive: does it oblige the
Netherlands legislator to make rules of a certain content or import or is that provision
of such nature that it can be applied as objective law right away.380
In the case-law those criteria have been further elaborated.381 Fleuren mentions in this
respect inter alia the following criteria:
- the way in which the engagements of the States parties to a treaty have been couched;
- is a provision fit to be applied by the courts;
- is it sufficiently concrete;
- is gradual implementation provided for;
- is the provision binding the State in its relations to other States only;
- does the provision contain a positive obligation (particularly relevant with respect to
social fundamental rights as opposed to classical fundamental rights).382
A most interesting development in the case-law is that the courts have created some sort of
an escape in order to avoid a direct conflict with the political branch, the so-called
abstaining. Occasionally the courts have ruled that even if the provision of international
law is to be considered as self-executing it would under certain circumstances lay
outside their competencies to apply the international law provision and let it prevail over
the domestic statutory provision. This is particularly so, when those circumstances call for
a weighing of different alternatives which the courts deem is beyond their judicial task and
rather a matter for the political branch to decide. Apparently for constitutional reasons, the
courts in those circumstances shrink from setting aside domestic statutory provisions. In
doing so they clearly abstain from giving effect to an international law provision, in spite of
their recognising it being self-executing.
Sometimes the courts leave the question of self-executingness undecided. They can do so
because they first preliminarily examine whether the contested domestic legal provision or
decision is in conformity with international law.383 If so, the question of self-executingness
becomes moot.
Especially in connection with the International Covenant on Economic, Social and Cultural
Rights (ICESCR) the matter of self-executingness has been discussed amply in the
literature.384 With respect to that Covenant the courts with a few exceptions have not
considered its provisions as self-executing. The Government when submitting the treaty
for parliamentary approval observed that most of its provisions will not be directly
applicable. In support of that view it pointed to Article 2 para. 1 where the State
380
381
382
383
384
Supreme Court HR 30 May 1986 (NS/FNV), NJ 1986, 688 3.2.

See generally Fleuren 2004.
Fleuren 2004, p. 271 ssqq.
Vlemminx & Vlemminx-Boekhorst 2005, p. 32.
See ibidem p. 28-40 and Fleuren 2004, p. 299 ssqq.
135
undertakes to take steps [...] to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights concerned in the present
Covenant.
Although this reasoning has been criticized by the UN Committee supervising this
Covenant as early as 1998. Still the courts are not inclined to lend direct effect to the
Covenants provisions. In the doctrine, to the contrary, it has been suggested that there
could and should be exceptions. For one, it would be conceivable that some of these
fundamental social rights would be applied by the courts, notably when newly introduced
domestic legislation threatens to reverse a progressive development with respect to such a
right into a retrograde development.
It is to be noted here that international law whether self-executing or not does not
obligate just the State as a single entity but can address and obligate its component parts,
notably the local authorities, as well. Disputes between central and local authorities
including disputes about questions of international law used to be subject to administrative
(non-judicial) review by the Crown and could result in annulment or non-approval of the
local authorities acts or regulations. Nowadays since the appeal to the crown has been
abolished following the ECrtHR judgment in re Benthem385 most such disputes are no
longer finally decided by the administration but by the Judicial Branch of the Council of
State. There is no reason to believe that this judicial body in future disputes between
central and local authorities would not apply non-self-executing international law
provisions either.386 Though non-self-executing, those provisions indirectly may benefit
the legal position of private parties in disputes with local authorities.
Treaties and Private Parties
The foregoing already sheds some light on the conditions or circumstances under which
treaties can be invoked and enforced in litigation by private parties. Generally, there are no
special conditions nor special tests applied in such disputes with regard to the standing of
private parties.
They may claim, as noted before, that the authorities have acted contrary to self-executing
and non-self-executing treaty provisions and bring civil actions for tort and damages.
However, private actions for an injunction with respect to the ratification or nonratification of international treaties by the political branches are not permissible. 387 In this
and other instances the courts for obvious constitutional reasons have refrained from
interfering in matters of foreign relations.
385
386
387
ECrtHR 23 October 1985, Benthem v. the Netherlands, Series A 97.

Royal Decree of 19 February 1993 (Eems-Dollard treaty Art. 48), Administratief rechtelijke beslissingen (abbr. AB) 1993,
385; see also Royal Decree of 19 July 1974, Stb. 496 and Royal Decree of 10 September 1974, Stb. 556 both squashing
regulations of the City of Rotterdam for non-compatibility with the Convention on the Elimination of All Forms of Racial
Discrimination.
HR 6 February 2004 (about participation in military action in Afghanistan), NJ 2004, 329.
136
Judicial Interpretation of Treaties

In interpreting treaty law the courts are not obliged to defer to the views of the government
or the legislature. In principle, they have full power to interpret treaties. If deemed
necessary, they even may review a treaty under international law itself, notably with
respect to compatibility with other treaties or international law. 388 It goes without saying
that they also may cite the Vienna Convention on the law of treaties. Occasionally, the
Advocates-General attached to the Supreme Court as well as the Government have referred
to that Convention.389 The Vienna Convention as such is not being subjected to the test of
self-executingness; the application of its rules on interpretation rather precedes the
decision about the self-executingness of other international law and ought to be
distinguished there from.
The courts do, however, take note of the information and opinions voiced at the occasion of
a treatys submittal for approval to Parliament and are used to accept these as a guidance.
Such guidance is the more important since the power to review under Articles 93 and 94 is
a diffuse one: all courts have to apply international law but some of them, in particular
courts of first instance, may lack the proper expertise or experience to do so.
On the other hand, as mentioned before ( 2.2), the political branches often explicitly leave
the interpretation of international law to the judiciary on the assumption that the courts
may meet the dynamic development of international law more flexibly and effectively than
the legislature itself.
Reservations
Courts have the power to decide whether a statement attached to an international
instrument by the government or legislature during treaty approval indeed is a
reservation.390 However, they may review the question only under international law, not
under constitutional law (the latter ban follows from Article 120 of the Constitution). Caselaw to that effect has not been reported; neither is there a reported instance of a court
deciding on the scope or legality of a reservation.
Effect of Treaties among Third-parties
Courts do refer to treaties to which the Netherlands is not a party. Here a distinction can
be made. Firstly, treaties can be binding although they have not yet been approved by
Parliament. Article 10 para. 1 of the 1994 Kingdom Act on approval and publication allows
for provisional application of treaties if such is considered to be particularly urgent; in
those instances parliamentary approval has to follow as soon as possible. Secondly, treaties
which have not yet entered into force for the Netherlands (e.g. because they have been
388
389
390
HR 10 November 1989 (Stichting verbiedt de kruisraketten/Staat), NJ 1991, 248 3.4.

Ibidem the Advocate General Moks brief 5.4 and 6.1 and Governmental note (supra note 1) p. 7.
HR 5 January 1990 (X/Jugendamt Tempelhof), NJ 1991, 591 3.4.
137
signed but not yet ratified) are formally not binding.391 Nevertheless the courts occasionally
apply them in anticipation392 or may pray in aid such treaties where they have to determine
(the contents of) a rule of positive law.393 It is noteworthy that this has happened also in
cases with respect to constitutional principles, such as the ban on discrimination and the
fundamental right of person or the fundamental right to a personality. Thirdly, it is
conceivable but not very likely that a court would refer to a treaty to which the Netherlands
is not a party nor has taken steps to become a party. Such reference, however, could only
support but not be a decisive element in the courts reasoning.
Comparable rules apply with respect to the far more rare cases of termination or of
withdrawal from a treaty.
Federal Systems
The foregoing is fully relevant with respect to the Kingdom and the Countries (overseas
territories). As mentioned in 1.3 the provisions of the Netherlands Constitution on
foreign relations are equally applicable and likely to be interpreted within the entire
Kingdom in the same manner.
Decisions of International Organisations, Tribunals and Bodies
Since the Netherlands Constitution places in juxtaposition the provisions of both treaties
and decisions of international organisations which may be binding on all persons by virtue
of their contents a few remarks will be made about the latter category which is of
increasing importance nowadays.
We will not dwell long on the decisions of the European Community since that
international organisation has its own rules for and judicial supervision over interpretation
and implementation of secondary community law by the member States. Yet, one
comment should be made. Since the Court of Justice of the EC judgment in re Van Gend &
Loos/Netherlands394 ruled that the Community constituted itself an autonomous legal
order, in the Netherlands the doctrine has been prevailing that the Articles 93 and 94 were
not instrumental in giving effect to European Community law within the domestic
Netherlands legal order, European Community law being supposed to have such an effect
in its own capacity.
Moreover, this understanding seems to have been confirmed by the Supreme Court and
has firmly been adopted by the administration.395 In spite of such evidently well
established constitutional practice, recently some authors have questioned that
391
392
393
394
395
HR 29 May 1996 (X/VZB), NJ 1996, 556; see further Fleuren 2004, p. 236, nt. 2.
See for examples of such anticipatory interpretation or enforcement: Erades 1993, p. 282; p. 559; p. 561-563; contrary: HR
24 January 1984 (Magda Maria), NJ 1984, 538 5.6.
HR 15 April 1994 (Valkenhorst), NJ 1994, 608.
5 February 1963, Case 26/62 Jur. 1963, p. 8.
HR 2 November 2004, NJ 2005, 80 and Governmental note (supra note 1), p. 6. See also Van Emmerik 2008, p. 149.
138
understanding.396 They point to the fact that the present Articles 93 and 94 were
introduced in the Constitution in 1953 precisely for enabling European Community law to
have effect within the domestic legal order and, they argue that therefore, these provisions
still have to be considered as instrumental in that respect.
Decisions originating from other international organisations pose problems with regard to
binding force, legality and legitimacy. Their binding force does not depend solely on the
sovereign States will as the decisions may have been taken by a majority of the
membership within the international organisation. Further and in contrast to the treaties
instituting the international organisations, these decisions are not subject to parliamentary
approval and they rarely have been translated and published officially.397
The constitutional notion of decisions of international institutions (i.e. organisations) still
is unclear in some respects. The Supreme Court turned down the argument advanced by a
taxpayer that the Universal Declaration of Human Rights qualified as a decision of an
international institution; it found that the United Nations General Assembly from which
the Declaration originates has no power to issue decisions that are binding on the
Netherlands.398
With respect to judgments of the European Court of Human Rights (ECrtHR) establishing
a violation of the European Convention on Human Rights (ECHR) by the Netherlands, in
theory, a similar reasoning could have been followed considering those judgments as
decisions in the sense of Articles 93 and 94 of the Constitution. Indeed, those judgments
though not explicitly qualified so in case-law nor in doctrine have such effect. The
same effect, however, has been given as well to judgments rendered against other States
parties to the ECHR. Yet, Article 46 of that Convention only provides that judgments are
binding inter partes.
Therefore in literature, the binding force or erga omnes effect of the latter has been
explained in a different manner as some sort of incorporation: the case-law of the
ECrtHR being construed as an authoritative interpretation of the ECHR and, therefore,
entailing the same binding force as has been attributed to the Convention itself. In this
manner the doctrine evades qualifying the ECrtHRs case-law as decisions in the sense of
the Constitution.
The doctrine as well as the courts have extended this reasoning to the views of the UN
Human Rights Committee supervising the Covenant on Civil and Political Rights (ICCPR)
and other international bodies supervising the interpretation and application of human
rights, though formally non-binding.399
Judgments and views of international (quasi-)judicial bodies often are concrete, elicited by
and addressed to individuals; they, therefore, often easily meet the constitutional
396
397
398
399
See for this discussion further: Van Emmerik 2008, p. 145-161, especially p. 149-150; see also Governmental note (supra
note 1), p. 5-6; see also Besselink & Wessel 2009 who advocate priority for the Constitution over international law in
virtue of the principle of democracy, p. 84 ssqq. and p. 106-109.
So-called rulings made by the tax authority with respect to (foreign) taxpayers are an exception; their official publication
takes place in the Staatscourant. See Alkema 2008, p. 184, note 421.
HR 7 November 1984, NJ 1985, 247.
Occasionally, Netherlands courts also refer to General Comments of the Committee supervising the ICESCR; an example
albeit negative is: Centrale Raad van Beroep (Supreme court in matters of social security), 11 October 2007 (LJN BB 5687).
139
requirements for self-executingness and so do the underlying treaty provisions. Although

so far, these international texts do not have exactly the same constitutional status as
decisions of international organisations occasionally, they may take priority over contrary
domestic statutory law.
The process of implementing international decisions, not only those concerning human
rights but also more technical decisions originating from Specialised Organisations as the
World Health Organisation, International Civil Aviation Organisation, International
Monetary Fund etc. shows a great variety and lacks a proper statutory or constitutional
structure. All branches of government: the executive, the legislative and the judiciary, are
involved. Sometimes they act consecutively e.g. the administration can take provisional
measures or the courts may adapt for the time being their internal organisation
awaiting the amendment by the legislature.
Implementation within the Kingdom can be even more complicated. Yet, a proper
procedure is lacking here too.
Exceptionally, special implementation procedures are provided for. With respect to the
implementation of judgments of the ECrtHR in criminal matters the Code of Criminal
Procedure in Article 957 para. 1 sub 3 provides for reopening of the contested proceedings.
As for the interpretation and implementation of international judgments and decisions,
especially those taken by international supervisory bodies in matters of human rights, the
political branches often can offer little or no guidance to the courts. Whenever the State
itself has been participating in drafting the treaties or participating in the proceedings
before the international tribunals or supervisory bodies it has acted in the completely
different role of a defendant State, whose interpretations carry, of course, little or no
special authority.
Customary International Law
Status in Domestic Law
The Netherlands Constitution is silent on customary international law.400 Articles 93 and
94 are not applicable. Therefore, in principle, customary international law does not prevail
over Acts of Parliament, the Constitution or the Charter of the Kingdom.401 There are,
however, some specific statutory provisions recognizing it as a source of law. These few
exceptions have been mentioned above in 1.2; they concern the execution of court
judgments as well as some matters of criminal and fiscal law. In virtue of these statutory
provisions customary international law provided it is self-executing and in the
circumstances therein indicated prevails over all other domestic legal norms.
400
401
See Erades 1980, p. 388.

So Governmental note (supra note 1), p. 5; in the same sense Judicial Division of the Council of State 15 January 1996 (Ver.
Milieu Offensief/B & W Groesbeek), AB 1996, 333.
140
In other instances, customary international law is being recognised as a source of

international law that could and should be applied by the courts402 but take priority over
domestic delegated legislation only.403
The leading case with respect to customary international law still is the Supreme Courts
judgment in re Nyugat dating from 1959.404 In that case, the Supreme Court, strongly
relying on the articles drafting history, found that Article 66 (now Article 94) of the
Constitution had as its purpose to define the courts competence to review domestic law for
compatibility with international law and that, for that matter, any such review was limited
to self-executing provisions of treaties and of decisions of international institutions. In the
instant case this precluded the application of customary international law on prize.
The judgment, though leading, in fact it is submitted here is atypical in several
respects: in matters of prize the Supreme Court exercised exclusive jurisdiction in two
instances; that jurisdiction had not been used for over a century; the case concerned
emergency legislation with retroactive effect while the facts had occurred in wartime.
Nevertheless, during the 1983 overall revision of the Constitution the Government
explicitly upheld the Supreme Courts narrow doctrine in Nyugat: matters of customary
international law lay outside the courts reviewing mandate. It did so notwithstanding the
judicial tradition before 1953 and the opinions held in literature which were more
favourable to applying customary law.
It is possible, though, that customary law is taken into account when the courts or the
administration have to decide preliminarily about the validity under international law of
(self-executing) treaties and decisions of international organisations. Neither is it to be
excluded that the courts, in the future, might refer to customary international law in
support of an interpretation of domestic law in conformity with customary law.
The Judiciary and Customary International Law
In view of the above, answering the questions on customary international law posed by the
general rapporteur is not always possible and often will be hypothetical. Yet, the following
can be remarked.
As mentioned before customary international law is referred to rarely in the case-law.
Incorporation nor implementation, however, is necessary in order to enable the courts to
give effect if any to it. Courts may apply customary international law to the extent it
is self-executing in those instances where domestic law explicitly refers to it (see supra
1.2). A case in point is a court ruling about the interference of the administration with the
execution of a judgment providing for seizure of the bank account of the Turkish Republics
embassy in order to ensure the payment of salary to a Dutch citizen and former
402
403
404
District Court of Rotterdam 8 January 1979, NJ 1979,113 (Stichting Reinwater e.a. MDPA) where the court considered: this
law [i.e. the law prevailing in the Netherlands] includes the unwritten rules of international law; Dutch courts are not only
empowered, but even obliged to apply unwritten international law where appropriate, NYIL XI (1980) p. 329.
So Governmental note (supra note 1), p. 5.
HR 6 March 1959 (Nyugat), NJ 1961, 2.
141
employee.405 At that occasion the judge expressly rejected the States assertion that the
jurisdiction would be restricted with respect to interference with the execution of
judgments. The court conceded though that, generally, in matters of customary
international law it has to be taken into account that the Government represents the State
in international relations and is as such a law-making actor. Therefore, it may be
appropriate for the courts to hear the Governments advisors in international law.
However, the instant case in the opinion of the court did not require such a hearing
since the customary international law about State immunity was sufficiently clear on the
point at issue: it allows for immunity from execution in cases where assets to be seized as
in the present case are meant for public purposes.406
Ex officio Application and Scope of Customary International Law
As appears from this case-law the courts take judicial note of customary international law
and, incidentally will apply it ex officio. This can be inferred from the just mentioned
judgments of the District Court of Rotterdam and of the Supreme Court about the
Universal Declaration of Human Rights.407 In the latter case it would have been
conceivable that the court had examined whether the Universal Declaration in the
meantime had acquired binding force as customary international law408 but it did not do
so.
From the above it follows that customary law has plaid a role with respect to State
immunity. It is likely that it will also permeate into the case-law about (military) criminal
and fiscal law. In those areas legislation explicitly gives leeway to do so.
Hierarchy
The Rank of Treaties and Customary International Law
As explained before in 1.1, the Netherlands Constitution focuses in particular on selfexecuting treaty law and on decisions of international organisations. Self-executing
international law enjoys top rank in the hierarchy. Article 94 of the Constitution provides
that all statutory regulations in force, i.e. also the Constitution itself and the Kingdoms
Charter, are not applicable if in conflict with self-executing international law. This is
affirmed also by Article 120 of the Constitution: the courts have no power to review such
international law for constitutionality.
405
406
407
408
President of the Judicial Division of the Council of State 24 November 1986, Kort Geding 1986, 38.
The Court made a distinction with respect to a Supreme Court judgment, of 26 October 1973, NJ 1974, 361. There the
Supreme Court held that the Socialist Federal Republic of Yugoslavia, although not a party to the Treaty of 10 June 1958 of
New York in matters of recognition and execution of foreign arbitral awards, could not be received in its claim based on
customary international law for immunity from an award to which it is a party.
HR 7 November 1984, NJ 1985, 247; See, generally, on the conflicts between treaties in Dutch case-law, Mus 1996.
See Humphrey 1979, p. 38 ssqq.
142
The Constitution does not refer to other sources of international law nor to non-selfexecuting international law. In principle, this does not imply a lower priority for such
international law provisions. In doctrine it is held that according to constitutional
customary law international law not provided for in the Constitution if binding on the
Netherlands equally enjoys priority. However so far, that is not born out by practice (see
with regard to customary international law the previous section).
With respect to the non-self-executing provisions of treaties and of decisions of
international organisations there is no doubt priority. This is especially relevant for the
administration and the legislature. The political branches are firstly responsible for the
regulations and measures implementing international law and, generally, for compliance
with international law engaged into by the State. In addition Government and Parliament
have to test, in virtue of Article 91 para. 3, whether international law is in conflict with the
Constitution but not in order to let the latter prevail. A positive test requires at least in
theory a stronger legitimacy through an approval of the treaty by a qualified majority of
votes in Parliament. Rarely however, the procedure of Article 91 para. 3 has been followed.
An omission, that is recently being criticized in Parliament, notably in the Senate, with
respect to Treaties establishing the EC and EU and also with respect to the Treaty on the
International Criminal Court.409 This criticism is understandable; if a treaty considered to
be conflicting with the Constitution has not been approved with such a qualified majority
but with a simple majority only it, nevertheless, will have the effect of amending the
Constitution materially. The conditions for a formal revision of the Constitution are much
stricter. They are spelled out in Articles 137-142 providing for a twofold reading by
Parliament and a two thirds majority in its Lower House.
Like the customary international law the general principles of law are so to speak in limbo.
During the last decades, however, several of these principles have been codified in
(multilateral) treaties e.g. the principles of equality and non-discrimination, abuse of rights
and of other principles essential to the Rule of Law. Such codified principles, of course,
have the same status as other treaty law.
Reconciling or Conforming Domestic Law to International Law?
In contrast to the judiciary in some Scandinavian countries, the Netherlands courts are not
used to explicitly referring to a rule of presumption. Rather they interpret domestic law in
conformity with international law implicitly. Some thirty years ago they occasionally did so
in a reverse manner. Several international legal rules were bended so as to conform to
domestic notions and rules!410 Apparently, at the time the courts not being accustomed to
apply the new power (dating from 1953) to review domestic statutory law preferred
avoiding an overt conflict with the political legislative branches.
409
410
See Van Emmerik 2008, p. 148 and also Besselink & Wessel 2009, p. 52 ssqq.
Erades 1993, p. 429, note 132.
143
As for the technique of abstaining: when the courts for political and constitutional reasons
refuse to apply international law although it is considered self-executing, we refer to 2.3
supra and 5.4 infra.
Ius cogens
The courts recognize the doctrine of ius cogens norms.411 An old but somewhat shaky
precedent dating back to the 1948 Constitution is the Supreme Courts judgment of 28
November 1950.412 It concerned the winding up of a colonial heritage: the question where
to demobilize the former colonial military troops mostly originating from the Moluccan
Islands: in at the time hostile newly independent Indonesia or in the motherland in
Europe. The Court, rejecting the Governments argument derived from international law
and from the Union treaty with Indonesia, referred to other rules and principles of law.
Although it did not use the term ius cogens as such it ruled that not demobilizing the
troops in the Netherlands would have been illegal and constituting a tortuous act
endangering the fundamental right to life of the persons concerned. At that moment the
Netherlands was not yet bound by a treaty spelling out the right to protection of life, the
ECHR not yet being ratified by the Netherlands. Since the Constitution does not contain a
guarantee for the right to life either, the norm referred to was in fact unwritten and
probably part of international customary law.
At a first glance the more recent record of case-law about ius cogens appears to be scanty.
Again this may be a matter of codification. Over time much ius cogens norms have been
laid down in treaties, particularly human rights treaties. Notably Article 3 of the ECHR and
Article 3 of the European Convention for the Prevention of Torture, have exercised and still
do exercise a considerable influence in the courtrooms and affect directly the policy of e.g.
the immigration and penitentiary authorities.
It goes without saying that the courts and the administration when applying these norms
strongly subscribe and defer to the case-law of the ECrtHR, of other international tribunals
and to the reports of supervising quasi-judicial bodies like the European Committee for the
Prevention of Torture. It is in this context that the technique of incorporation (see supra
section 3) often plays an important role.
Effect of International Law on the Case-law
International law guarantees for human rights have had and still have an enormous impact
on domestic case-law. This is particularly so for the civil and political rights laid down in
the ECHR and International Covenant on civil and political rights (ICCPR). Most of them
are considered to be self-executing. Through the afore mentioned technique of
411
412
See HR 10 November 1989 (Stichting verbiedt de kruisraketten/Staat), NJ 1991, 248 rejecting the applicability of ius cogens
in the instant case and the Advocate General Moks brief 6, pointing to the codification of ius cogens in the Vienna
Convention on the Law of Treaties.
HR 2 March 1950 (demobilization of KNIL military troops), NJ 1951, 217.
144
incorporation the judiciary takes due account of the interpretation by the ECrtHR and the
UN Committee on Human Rights.
The huge influence of the self-executing human rights law finds its cause in so to speak a
contradiction within the Constitution.413 Firstly, pursuant to Article 120 Acts of Parliament
are not subject to review for unconstitutionality, whereas Acts of Parliament and any other
domestic statutory regulation are subject to judicial review for compatibility with selfexecuting international law (Article 94) as was noted before. However, both the
Constitution and international treaties contain similar provisions, notably fundamental
rights. Consequently, any dispute about the alleged illegitimacy of Acts of Parliament
concerning such fundamental rights, necessarily tends to revolve around the application of
international law and is not being considered under the comparable constitutional
provisions.
Secondly, the 1983 revision of the Constitution has not been used to mend that flaw. To the
contrary, Government and Parliament did not avail themselves of that occasion to adapt
and complete consistently the existing catalogue of constitutional fundamental rights and
thus missed the opportunity to make the Constitution more protective or at least as
protective as the international fundamental norms. Therefore, in practically each case
about an alleged conflict between fundamental constitutional rights and delegated
legislation or administrative decisions both constitutional and international fundamental
rights are invoked and to be applied side by side. The more so, since the courts have to let
the most protective provision prevail (see i.a. Article 53 ECHR and Article 5 para. 2
ICCPR). As a consequence, interpretation and application of international human rights
have become a matter of daily routine in the courtrooms and also in legislators quarters.
Other international fundamental rights that are not self-executing firstly need
implementation in domestic legislation; an example is the Convention on the Elimination
of All Forms of Racial Discrimination. Yet, the courts in interpreting certain notions from
that treaty have referred to the treaty itself.414
Some treaties, such as the European Social Charter (Turin, Italy, 1961) and the
International Covenant on Economic, Social and Cultural Rights, are less influential. Here
the non-self-executing character of most rights is a hurdle if not a barrier in domestic
court proceedings. A similar divide in effects can be observed with regard to mixed
treaties protecting specific groups of persons e.g. the Convention on the Rights of the Child
containing civil and political rights as well as social rights.415
A special problem is posed by the internationally guaranteed principle of equality and nondiscrimination. That has been enshrined in numerous treaties, including the Treaties,
regulations and directives of the EC. The principle is considered to be self-executing.
Claims combining this principle with social fundamental rights tend to make the latter in
that respect apt for judicial review, as yet. It is precisely in this context that the technique
413
414
415
See further Alkema 2006, p. 333-334.

HR 15 June 1976, NJ 1976, 551.
See Van Emmerik 2005, p. 700-716.
145
mentioned in 2.3 of abstaining has developed. Disputes about social fundamental issues
linked with discrimination may be of such a political calibre if not explosiveness that the
judiciary tends to pass the buck to the legislature and, in doing so, in fact declines to apply
the self-executing non-discrimination principle.
It can be concluded that the effect of international fundamental rights on constitutional
matters is considerable and so is the impact, generally, on the interpretation and
application of the constitutional provisions concerning international law. Rarely, other
elements of the Constitution, to my knowledge, underwent any such influence. An
exception perhaps are the specific provisions introduced in 1983 in the Constitution
(Articles 42 ssqq.) singling out the Prime Minister among the other cabinet ministers.
Before, the Prime Minister was considered a primus inter pares. The amendments have
been introduced to reflect the new coordinating role for the Prime Minister necessitated by
his membership of the European Council of the European Union. On the other hand,
following the discussion briefly mentioned in 3 (supra) it has been advocated but so far
in vain to introduce a general provision about the status and effects of European
Community law.
Differences in Status for Specific Parts of International Law?
The Constitution does not foresee any hierarchy neither between treaties and decisions nor
among decisions of international organisations. It is likely, though, that the courts will
attribute a higher rank to the treaties establishing an international organisation than to the
decisions originating from such an organisation. A comparable hierarchy is made by the
Court of Justice of the EC with respect to the Treaties establishing the EC and the EU and
the ECs so-called secondary rules like regulations and directives.
Conflicts between Community law and other international legal obligations may occur.
This was the case in the Barber judgment of the Court of Justice (CoJ)416 which was
followed by a view of the UN Committee on Human Rights in a case concerning the
Netherlands.417 The legal dispute revolved around the date as from which a distinction
based on sex with regard to pensions was to be illegitimate. The Government endorsed the
point of view of the EC CoJ and a similar judgment of the Centrale Raad van Beroep
(Supreme Court in matters of social security)418 and reacted by stating that it was unable to
share the view for compelling reasons of legal certainty.
Sometimes this type of conflicts can be resolved outside the domestic legal system by the
EC CoJ. A case in point is the CoJs judgment in re Kadi and Al Barakaat/Council.419 In
that case the Court of Justice tested the EC regulation implementing a decision of the
Security Council Committee against fundamental principles underlying Community law,
416
417
418
419
Court of Justice E.C., Case of 17 May 1990 C262/88 (Barber).

View of 26 July 1999 Communication No. 768/1997 (Vos v. the Netherlands).
Decision of 26 November 1998, RSV 1999, 92.
Of 3 September 2008, C-402/05 and C-415/05P.
146
notably those concerning a fair trial, and concluded that the regulation did not meet this
standard.
In another case about a conflict between treaties the Netherlands Supreme Court exercised
a comparable test.420 The facts concerned a handing over under the NATO Status Treaty of
an American military billeted in the Netherlands and suspected of the murder of his
spouse. Handing over of the man to the American authorities would have conflicted with
Article 2 of the ECHR and Article 1 of the 6th Protocol to the ECHR since it was likely that
he would be sentenced to death. The Court weighed the conflicting international law: at the
one hand the interests of the individual protected notably by Article 2 of the ECHR
(prevention of the death penalty) and at the other hand the obligation derived from the
international NATO Status Treaty obligation. It ruled that fundamental principles (i.e. the
human rights provisions) had to prevail. No doubt this judgment was inspired by Soering
v. UK of the ECrtHR.421
The conclusion can be that there are no general unqualified answers to questions of status
or rank of different types of international law in the Netherlands legal order.
Jurisdiction
Universal Jurisdiction over International Crimes?
Generally, pursuant to Article 13A of the General Provisions Kingdom Act 1829 the courts
jurisdiction is subject to the exceptions recognised in international law. This article was
inserted during the 1st World War. The reason for the amendment was that a District court
had been neglecting state immunity and had ordered, contrary to international law, the
seizure of a German state-owned vessel. The incident was politically very serious and could
have been a casus belli for Germany since the Netherlands at the time was a neutral state.
The jurisdiction with respect to criminal law is laid down in Articles 2 to 7 of the Criminal
Code (see also 1.2 supra). They provide for the applicability of the Criminal law (viz.
jurisdiction) in the following cases: crimes committed within the Netherlands territory and
on board of Dutch vessels and aircrafts; certain crimes committed by whomsoever outside
the Netherlands (i.e. universal jurisdiction stricto sensu); crimes for which the prosecution
has been taken over from another state; certain crimes committed by Dutch nationals
abroad.422 Further, it is provided for that foreigners with a fixed abode in the Netherlands
who have committed war crimes or certain other special crimes abroad come under
Netherlands jurisdiction.
420
421
422
HR 30 March 1990 (Short), NJ 1991, 249.

Of 7 July 1989, Series A 161.
A recent example is HR 30 June 2009 (v. A./State) (conviction for supplying the Sadam Hussain regime with raw material
for chemical weapons), LJN BG 4822. Subsequent to this penal judgment also private law suits for damages have been
initiated. Jurisdiction international or national with respect to piracy (notably by Somalian nationals) is under
discussion now (see Parliamentary documents II 2009/2010, 29521 No. 124). Especially, the trial of pirates arrested by the
Netherlands navy acting within the framework of the EU or UN poses a problem. So far, it resulted in some pirates being
released, some others being extradited, while one criminal case is still pending.
147
Following the institution of the International Criminal Court in The Hague the Wet
internationale misdrijven (International Crimes Act) 2003 (Stb. 270) has been adopted. It
establishes universal jurisdiction for crimes like genocide, torture and war crimes as
defined in the relevant specific international treaties and conventions. The District Court of
The Hague is competent in these matters.
Criminal courts are equally competent in the adjudication of indemnifications connected
with the afore-mentioned crimes on conditions that victims or their relatives have joined
as civil parties in the criminal proceedings.
Civil Courts Jurisdiction for International Law Violations?
The civil courts also have jurisdiction in matters of indemnification. Moreover, they
exercise jurisdiction with respect to non-compliance with international law in actions for
tort against the State. This is the case where the State or the state authorities allegedly have
failed to comply with international law obligations e.g. if they do not take the proper
administrative action or pass the required legislation. It even is conceivable that state acts
in conformity with international law nevertheless are subject to civil actions where the
measures taken affect civil parties unevenly and therefore violate the principle of galit
devant les charges publiques.423 In this context it is to be noted again that the distinction
between self-executing and non-self-executing tends to become blurred. In principle, tort
actions can be brought against the State for not complying with international law
irrespective whether it is self-executing or not.
Other Sources of International Law
In the Netherlands Constitution there is no explicit reference to the general principles of
(international) law. Yet, occasionally the courts have referred to these principles. 424 They
are legally binding. In principle, they do not take priority over Acts of Parliament. In the
case-law, however, one exception, although not concerning a principle of international law
as such, has been recognised. On condition that during the legislative process a possible
conflict with principles of (international) law has not been addressed explicitly the courts
may, incidentally, consider the contrary statutory provision as inoperative. 425 In doing so
they exercise a sort of mitigated review: the statutory provision is not applied in the
instant case but nevertheless remains valid. It is likely that the courts will follow a similar
reasoning with regard to disputes about domestic law allegedly conflicting with general
principles of international law.
Another source of international law rarely is referred to in the case-law: comitas
gentium.426 It is not clear, though, which legal force has been attributed to it.
423
424
425
426
In connection with the International Court of Arbitration award in re Belgium/Netherlands (Iron Rhine) 2005.
Erades 1993, p. 115; p. 117 and p. 131.
HR 14 April 1989 (Harmonisatiewet) (about the principle of legal certainty), AB 1989, 207 and HR 9 June 1989
(Kortverband vrijwilligers), AB 1989, 412.
Erades 1993, p. 37.
148
Non-binding Declarative Texts

Non-binding declarative texts like the Universal Declaration of Human Rights427 and the
UN and European standards for the treatment of prisoners are relevant and often
authoritative for the courts. Of course, they can become legally binding if enhanced by later
developments e.g. if reference is made to these standards in subsequent binding or
recommendatory resolutions of international organisations or conferences, in judgments
of international tribunals or through state practice to that effect. The courts have
considerable discretion in these matters and also may be influenced by the stance taken by
the administration as to the quality of these norms.
Application or Enforcement by the Courts of Binding and Non-binding Decisions or of International Tribunals Judgments
As explained before, the Netherlands courts are used to apply the decisions of international
tribunals to the extent that they can be considered as self-executing. This is notably the
case with respect to the judgments of the ECrtHR and the Court of Justice and the Court of
first instance of the EU.
There is few case-law reported in which decisions of non-judicial treaty bodies have been
applied. The Commentaries on the OECD Model Tax Convention might be an example. 428
More frequent are the references to the interpretations of the UNHCR of the Refugee
Convention.429 In this context also are relevant the General Comments of the Committee
supervising the ICESCR, mentioned before.430 It can be concluded that the courts,
generally, will react favourably to those resolutions of international organisations and may
refer to them or even might incorporate them and treat them as part of the interpreted
treaty itself and lend it the same legally binding force and rank.
Literature
Alkema 1984
Alkema, E.A., Foreign Relations in the Netherlands Constitution of 1983, XXXI NILR,
1984, p. 307-331.
Alkema 2006
Alkema, E.A., Constitutional Law, in: Chorus, J.M.J. e.a. (eds.), Introduction to Dutch
Law, 4th rev. ed., Alphen a.d. Rijn: Kluwer Law International, 2006, p. 301-342.
427
428
429
430
HR 28 November 1950, NJ 1951, 137 (Tilburg).

See HR 21 February 2003, BNB/177C where the Supreme Court observed merely ex abundantia that its interpretation
would conform to such a commentary; see also Alkema 2008, p. 180.
District Court The Hague 27 August 1998, referring for its interpretation to a position paper of the UNHCR.
See supra note 36.
149
Alkema 2008
Alkema, E.A., The Commentaries on the OECD Model Tax Convention on Income and
Capital Effective in Domestic Law or in Need of Alternatives?, in: Douma, S. & Engelen,
F. (eds.), The Legal Status of OECD Commentaries, Amsterdam: IBFD, 2008, p. 163-194.
Besselink & Wessel 2009
Besselink, L.F.M. & Wessel, R.A., De invloed van ontwikkelingen in de internationale
rechtsorde op de doorwerking naar Nederlands constitutioneel recht (The impact of
developments in the international legal order on the implementation according to
Netherlands constitutional law), Deventer: Kluwer, 2009.
Buergenthal 1992
Buergenthal, T., Self-executing and Non-self-executing Treaties in National and
International Law, RCADI, vol. 235, 1992-IV, p. 307-400.
Emmerik van 2005
Van Emmerik, M.L., Toepassing van het Kinderrechtenverdrag in de Nederlandse
rechtspraak (Application of the Convention of the Rights of the Child in the Netherlands
case-law), NJCM-Bulletin, 2005, p. 700-716.
Emmerik van 2008
Van Emmerik, M.L., De Nederlandse Grondwet in een veellagige rechtsorde (The
Netherlands Constitution within a multilevel legal order), R.M. Themis, 2008, p. 145-161.
Erades 1980
Erades, L., International Law and the Netherlands Legal Order, in: Van Panhuys, H.F. e.a.
(eds.), International Law in the Netherlands, vol. 3, Alphen a.d. Rijn: Sijthoff &
Noordhoff, 1980, p. 375-434.
Erades 1993
Erades, L., Interaction between International and Municipal Law comparative case
law study, The Hague: T.M.C. Asser Instituut, 1993.
Fleuren 2004
Fleuren, J.W.A., Een ieder verbindende bepalingen van verdragen, (Provisions of treaties
which are binding on all persons), Den Haag: Boom Juridische uitgevers, 2004.
Hillebrink 2008
Hillebrink, S., Political Decolonization and Self-Determination, The Hague: T.M.C. Asser
Press, 2008.
150
Humphrey 1979
Humphrey, J.P., The Universal Declaration of Human Rights, Impact and Juridical
Character, in: Ramcharan, B.G., Human Rights: Thirty Years after the Universal
Declaration, The Hague: Martinus Nijhoff, 1979, p. 21-37.
Meijers & Siekmann 1982
Meijers, H. & Siekmann, R.C.R., The Magda Maria and customary law at sea a case
note [on the judgment of the District Court of The Hague of 27 November 1981], XIII
NYIL, 1982, p. 143-156.
Mus 1996
Mus, J.B., Verdragsconflicten voor de Nederlandse rechter (Conflicting treaties in
disputes before the Netherlands courts), Zwolle: W.E.J. Tjeenk Willink, 1996.
Vlemminx & Vlemminx-Boekhorst 2005
Vlemminx, F.M.C. & Vlemminx-Boekhorst, M.G., Recente rechtspraak van de Raad van
State over het begrip een ieder verbindend (Recent case-law of the Council of State about
the concept binding on all persons) JB-Plus, 2005, p. 28-40.
151

DOI: 10.989765/2016.5.1.89
Cross-border Successions. The New Commission

Proposal: Contents and Way Forward. A Report on
the Academy of European Law Conference of 18 and
19 February 2010, Trier
Eveline Ramaekers431
Readers are reminded that this work is protected by copyright. While they are free
to use the ideas expressed in it, they may not copy, distribute or publish the work or
part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use.
The Hague Programme, adopted by the European Council on 4 and 5 November 2004,
emphasises the necessity to adopt an instrument aimed at the harmonisation of conflict of
law rules in the area of cross-border successions. Within the internal market, EU citizens
should have the possibility to plan their succession in advance. Currently, the differences
in the Member States conflict of law rules on international successions sometimes make it
difficult for people to assert their rights, which hinders the free movement of persons.432
The proposed Regulation on Cross-border Successions433 (hereafter the Regulation) aims
to remove these obstacles. The conference at the Academy of European Law in Trier, organised by Angelika Fuchs, revolved around the Commissions proposal. The content and
future impact of the Regulation were elaborately discussed during the different presentations.
Eveline Ramaekers is a PhD researcher in the field of European property law at Maastricht University, Faculty of Law, and
resident fellow at the Maastricht European Private Law Institute (M-EPLI).
432 See Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and
enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, COM(2009) 154 final, recitals 5 and 6.
433 COM(2009) 154 final.
431
152
1. The conference was opened with a presentation by SALLA SAASTAMOINEN, Head

of the civil justice unit, DG Justice, Freedom and Security, of the European Commission.
She started by commenting on the Impact Assessment, highlighting that approximately 8
million Europeans have used their right of free movement under the Treaty. That makes it
likely for those persons estates and heirs to be spread over several Member States. It follows from the Impact Assessment that there are about 450 000 international successions
in Europe per year, with an average value of 275 000. That means that international successions occurring in Europe every year involve an amount of no less than 124 billion.
This indicates once more how important it is to regulate these successions within the internal market.434
Because conflict of laws rules differ from Member State to Member State, it is difficult to
know in advance how a court will deal with an international succession. For instance, the
law applied to immovables may differ from that applied to movables, which is for instance
the case under English law, where immovables are subject to the lex rei sitae but movables
are subject to the lex domicilii of the deceased.435 These problems led to a policy objective
set at Union level: on 30 November 2000 the Council adopted a draft programme of
measures for implementation of the principle of mutual recognition of decisions in civil
and commercial matters.436 The programme provides for the drafting of an instrument relating to successions and wills.437
The idea behind the Regulation is that the entire estate of the deceased will be considered
as one and be subjected to one single law applied by one authority. This will promote simplification, and improve legal certainty and legal clarity. There will be more party autonomy: the testator will have a limited choice to choose the applicable law (i.e. that of his nationality) in deviation from the standard connecting factor of permanent residence. The
legal basis underlying the Regulation is Article 81(2) TFEU, ex Article 61(c) and 2nd indent
of 67(5) EC. SAASTAMOINEN explicitly stated that succession is considered to be property
law and not family law.438 She was also keen to stress that the Regulation does not aim at
harmonisation of the substantive law of succession, nor shall there be any effect on national tax laws. The Regulation therefore only makes a decision as to the applicable law.
2. The second speaker of the morning, JONATHAN HARRIS, Professor at the University of Birmingham and Barrister, Serle Court, London, addressed the scope of application
of the proposed Regulation and the exclusion of rights in rem and trusts.
With regard to the scope of application of the Regulation, HARRIS drew attention to Article
25, which states: Any law specified by this Regulation shall apply even if it is not the law of
The objectives set on the basis of the Impact Assessment are: to allow EU citizens to plan successions in advance; to increase
the likelihood that the rights of potential heirs and creditors are protected in an efficient way; to prevent parallel proceedings; to
prevent the application of different substantive laws to the same succession; to provide a (limited) choice of law to the testator;
to ensure the recognition of rights and decisions; to increase accessibility to information on the existence of wills; to create a
European registration of wills.
435 L. Garb and J. Wood (eds.), International Succession (3rd edn., Oxford: OUP, 2010), p. 243 at 15.99 and 15.102.
436 [2001] OJ C 12/1.
437 Proposal for a Regulation on matters of succession, Recital 4.
438 This also follows from section 3.1 of the Explanatory Memorandum to the Regulation.
434
153
a Member State. In his opinion, this article broadens the scope of the Regulation dangerously wide. In practical terms, it means having to take into account the law of any country
in the world. One could also ask how effectively decisions from Member States courts
could be enforced in non-Member States.
Next to that, Article 1(3)(j) excludes the nature of rights in rem relating to property and
publicising these rights from the scope of application of the Regulation. HARRIS asked the
question, what this Article exactly means, and whether the content of rights in rem must be
recognised, as opposed to their nature, whatever the latter may mean. Furthermore, he
wondered whether personal rights affecting land, such as lease, were excluded as well. In
any case, Article 1(3)(i) of the Regulation excludes the constitution, functioning and dissolving of trusts. This could lead to an unbalanced outcome, if the UK would need to recognise other foreign property rights, but the other Member States would not need to recognise a trust created under a will.
3. The third speaker of the morning, ANDREA BONOMI, Professor at the University
of Lausanne, discussed how to balance party autonomy under the Regulation and the protection of certain family members. The reason for limiting the testators choice of law under the Regulation to the law of his or her nationality is to protect the reserved portion for
certain heirs that is provided for under the law of several Member States. Too broad a
choice of law could create an opportunity to circumvent such rules. Moreover, a choice of
law can only be made for the entire estate.
In BONOMIs opinion, the conflict of laws rules laid down in the Regulation do reflect a substantive policy, regardless of SAASTAMOINENs statement that the proposed Regulation does
not affect substantive national succession law. The approach of the Regulation favours party autonomy and promotes foreseeability, making it easier to plan ahead. However, according to BONOMI, last habitual residence as the main connecting factor is an unstable one, in
contrast to the classical, more stable connecting factors such as nationality or situs. The
choice of habitual residence as connecting factor is not very favourable for estate planning
either. In answering a question from the audience, BONOMI stated that people with more
than one nationality should be able to choose any of the nationalities they possess. This
was confirmed by SAASTAMOINEN. As far as timing is concerned, a testator can probably
choose the nationality he has at the moment he makes the choice of law; this could be
changed at a later stage.
4. The second half of the day started with a presentation by MICHAELA
NAVRTILOV, Kanzlei JUDr Zdenk Hromdka, Zln, concerning the question which court
has the competence to decide on a cross-border succession.
Jurisdiction is regulated in Chapter II of the Regulation. Currently, the national rules indicating the competent court are so diverse, that they lead to either positive competence conflicts, where a variety of courts is competent, or negative competence conflicts, where no
court considers itself to be competent. This also opens up the possibility of forum shopping, which NAVRTILOV considered to be an undesirable effect. Her solution to the competence issue would be to harmonise the rules on international jurisdiction as much as
possible in sink with the harmonisation of the rules on the applicable law, in other words,
154
harmonise the ius and the forum simultaneously. She therefore favours the Commissions
choice for the last habitual residence as connecting factor and would propose to use the
same connecting factor when deciding on the competent court. This would achieve the coincidence of ius and forum. An added advantage is that the majority of the succession
property and the potential heirs will usually be located at the habitual residence of the deceased. Two disadvantages are, that the last habitual residence has not been defined in the
Regulation, and that the testator can alternatively choose the law of his nationality, but he
cannot make a choice of forum. However, Article 5 of the Regulation, which makes it possible to refer a case to a court better placed to hear the case, could ensure the coincidence
of ius and forum after all.
5. The first day ended with a workshop from CHRISTIAN HERTEL, notary, Weilheim
i. O.B. The topic was regulation of succession by last will, succession contract
(Erbvertrag), or common/joint last will in cross-border cases. HERTEL presented remarkably detailed research in the form of case studies on cross-border successions, thereby
showing how the current divergences in conflict of law rules cause problems.
His first example was that of the famous composer Chopin, who died in France. According
to (modern-day) French law, Chopins last habitual residence would determine the law applicable to his succession. That would be French law. Polish law, on the other hand, uses
nationality as a connecting factor. That would make Polish law applicable to Chopins succession. A positive competence conflict arises.
In a second example, a French citizen dies in Poland. According to French law, the last habitual residence determines the applicable law. That would indicate Polish law. According
to Polish law, however, French law would be applicable as the law of the nationality of the
deceased. Here, a negative competence conflict arises. To avoid ping-ponging the case
back and forth between the Polish and the French courts, the matter will stay before the
French court after the first renvoi (Rckverweisung).
HERTEL further showed, that some countries split up the succession (Nachlassspaltung),
for instance by applying the law of the deceaseds last habitual residence to the movable
assets and the lex rei sitae to the immovable assets of his estate.
The Regulation purports to solve the kind of problems exemplified by HERTELs case studies, by adhering to one connecting factor, notwithstanding of course the limited choice of
law for the testator. And even in case a choice of law is made, it is only possible to make a
choice of law for the entire estate; a Nachlassspaltung would thus no longer be possible.
After entry into force of the Regulation, many Member States would have to give up the
connecting factor that they currently use. However, the choice of law facilitated by the
Regulation will provide citizens with the possibility to choose the law of their nationality
after all. As of yet, no transitional arrangements have been made. This can cause problems
after entry into force of the Regulation: people could find that their succession is suddenly
governed by a different law, even though they have not even moved.
7. The second day started with a presentation by SJEF VAN ERP, Professor of European Private Law at Maastricht University. He examined the role of the lex rei sitae rule in the law
155
of succession, and the interplay between European law and national succession law and
general property law.
The Regulation seems to contain conflicting conflict rules: the lex successionis in Articles
16 ff., adhering to the last habitual residence as connecting factor, and the lex rei sitae,
amongst others to be found in Recitals 10, 21 and 22 and Articles 1(j), 19(f), 21 and 22. The
lex successionis and the lex rei sitae will not always point to the same applicable law.
Next to this, the Regulation excludes from its scope of application the nature of rights in
rem relating to property and publicising these rights.439 The Explanatory Memorandum
(p.5) and Recital 10 say the same: the numerus clausus of property rights remains a matter
for national law and land registries are also to be governed by local law. The idea behind
this, is that the regulation does not aim at harmonising substantive succession law, but,
according to Van Erp, private international law (PIL) and substantive law cannot be separated. For instance: if a surviving spouse has a right under the last will of the deceased to a
usufruct of a house, then what is to happen if that house is located in England? The Regulation does not touch the national numerus clausus; English law does not know a right of
usufruct, so the result would be that the surviving spouse could not claim his or her right
under the will. Such an outcome would not be in accordance with the fact that the right to
property is seen as an integral part of the fundamental rights respected by the ECJ and the
ECHR. If a property right acquired via a will ought to be protected as a human right, it
cannot be denied simply because that right does not exist in the numerus clausus of a particular country.
In conclusion, it is a bit of an illusion to assume that it is possible to regulate the conflict of
law rules in a particular area without in any way touching upon the substantive law. Not
only will the substantive law indirectly be affected through the integration of the PIL rules,
it is also in general affected by the EUs negative integration in the form of the four freedoms,440 prohibiting Member States from applying national rules of property law or succession law. Finally, national property law is also not exempt from the influence of secondary law, i.e. direct, positive integration. Article 345 TFEU (ex Article 295 EC), which states
that [t]he Treaties shall in no way prejudice the rules in Member States governing the system of property ownership, is not to be interpreted in such a way that it denies a competence for the European Union to legislate in the area of property law.
8. The presentation by PAUL MATTHEWS, Consultant, Withers LLP, Professor at
Kings College London, started with an account of the history of matrimonial property law
and the law of succession. He sketched the differences between the Roman system and the
Germanic system. Cultural differences and the impact or lack thereof of the feudal system eventually led to four main regimes in the modern European systems: (1) complete
separation of property; (2) community of acquisitions (income and capital); (3) community
of movables and acquisitions; and (4) universal community. MATTHEWS thereafter discussed the English position in more detail. He highlighted the absence of a general law on
439
440
Supra, section 2.
Free movement of persons, services, goods and capital.
156
the matrimonial property regime in English law; the fact that the law does not provide for
reserved shares; and the fact that much use is made of joint tenancy, especially when it
comes to land. Joint tenancy has the notion of survivorship: the rights of every joint tenant
are regarded as a burden on every other joint tenant. This burden disappears upon death,
leaving the surviving joint tenant automatically as sole tenant.
The Regulation excludes from its scope questions regarding the matrimonial property regime.441 Matthews disapproves of this, given that matrimonial property regime and succession are so closely connected. He ended his presentation by pointing out that there is a
rather serious incorrect translation in Article 1(3)(f) of the Regulation. This Article excludes rights and assets created or transferred other than by succession to the estate of
deceased persons, including gifts, such as in joint ownership with right of survival, pension
plans, insurance contracts and or arrangements of a similar nature, notwithstanding Article 19(2)(j) [emphasis added]. Notwithstanding is the complete opposite of the French
version, which uses the words sous rserve de. It is important to take note of this error,
for it changes the meaning of this Article entirely.
9. The last speaker, MARIUS KOHLER, Director, Federal Chamber of German Civil
Law Notaries, Berlin/Brussels, discussed the recognition and enforcement of judgments
and authentic instruments. The European Court of Justice defined the term authentic instrument in the Unibank case: Since instruments drawn up between private parties are
not inherently authentic, the involvement of a public authority or any other authority empowered for that purpose by the State of origin is needed in order to endow them with the
character of authentic instruments.442 This definition has been taken up by the Commission for the succession Regulation in Article 2(h).
The concept of mutual recognition is a core policy of the EU to ensure cross-border circulation of judicial decisions. It can inter alia be found in the EU Council Conclusions of
Tampere 1999, and in the 2004 Hague Programme. The concept of mutual recognition
does, however, in general not apply to authentic instruments in the way in which it applies
to judgments. KOHLER put forth that mutual recognition in the case of authentic instruments is not necessary anyway. In his opinion, all that is needed to recognise an instrument as authentic is a clear-cut definition of authentic instrument and a provision on the
conditions of its cross-border enforceability. Both have already been provided for: the
Unibank case provides the definition, and conditions for cross-border enforceability can
already be found in the Brussels I Regulation.443 Article 35 of the proposed Regulation on
matters of succession refers to Article 57 of the Brussels I Regulation, providing for crossborder enforceability.
Art. 1(3)(d).
Case C-260/97, Unibank A/S v Flemming G. Christensen, [1999] ECR I-3715, para. 15. The definition is based on the Jenard
Mller-Report on the Lugano Convention, [1990] OJ C 189/57: A document in which the debtor acknowledges his debt in a private deed cannot be qualified as an authentic instrument, since the authentic instrument presupposes that a public officer entrusted by the State with public authority draws up the instrument.
443 Article 57 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters, [2001] OJ L 12/1.
441
442
157
KOHLER also signalled a danger in applying the concept of mutual recognition to authentic
instruments, in that it could lead to circumvention of private international law rules. A last
will or succession contract would, under the concept of mutual recognition, need to be recognised as valid in all Member States purely based on the fact that they had been laid down
in an authentic instrument. Applicable PIL rules on form, validity and effects of the legal
transaction might thereby be set aside. The Commission has apparently also realised that,
as far as mutual recognition is concerned, authentic instruments and court decisions cannot be treated alike. Recital 26 to the Regulation reads: [A]uthentic instruments cannot be
treated as court decisions with regard to their recognition. The recognition of authentic
instruments means that they enjoy the same evidentiary effect with regard to their contents and the same effects as in their country of origin, as well as a presumption of validity
which can be eliminated if they are contested. This validity will therefore always be contestable before a court in the Member State of origin of the authentic instrument, in accordance with the procedural conditions defined by the Member State.
10. The conference was concluded with a discussion around the creation, content
and effects of the European Certificate of Succession (ECS). The discussion was presided
over by HUGUES LETELLIER, Managing Partner, Hohl & Associs, Paris. The Regulation introduces the ECS, which is meant to constitute proof of the capacity of heir or legatee and
of the powers of the executors of wills or third-party administrators.444 The use of the certificate is optional, and in accordance with the principle of subsidiarity, it will not replace
internal procedures of the Member States.445 However, it is supposed to be recognised automatically in all the Member States with regard to the capacity of the heirs, legatees, and
powers of the executors of wills or third-party administrators.446 As MARI AALTO (Legal
Officer, DG Justice, Freedom and Security) pointed out, the idea behind the ECS is to avoid
the lengthy procedures citizens sometimes have to go through now, in order to prove, in
the Member State where the assets are located, their capacity of heir, to be recognised as
the owner of certain assets, to have a local administrator appointed, etc. The ECS is drawn
up in a standard form, which will be available in all the EU languages, so that it will be able
to circulate freely.
A final, yet important, remark during the discussion was made by RAFAEL GIL NIEVAS,
Permanent Representation of Spain with the EU in Brussels. He drew attention to the fact
that nowhere in the Regulation or anywhere else in the surrounding documentation is
there a definition of cross-border succession (with emphasis on cross-border). One would
expect this to be an essential element in a proposal for a Regulation on international successions. Whether a particular situation is cross-border or not, is a question that needs to
be answered in any part of European law. It is the trigger for its application. Many problems of interpretation could arise, if this is not taken into account before the Regulation is
adopted in its final form.
Article 36(1).
Recital 27.
446 Article 42(1).
444
445
158

DOI: 10.989765/2016.5.71.4
Necessity To Engage With The Elements Of Judicial

System And Its Impact On The Provision And Development Of Justice And Security
Vali ShirPour447
Abstract
People of society as capital and human resources of a society are in need to the
peaceful society along with justice and security in order to fruition from healthy and better
future. Security provision that is due to the implementation of justice is the most important wanted of each judicial organization and the main components of judicial system
of each country are judges and lawyers. Existence of common objectives as law enforcement to revive community member rights and to the provision and development of security and justice establishment requires more and more interaction between these two sides
of justice.
In the present study which has been done using library method, there is an attempt
to survey the interaction and the effect of two socially important institutes on justice and
security and also the existent barriers in this direction and present needed guidelines in
this field through explaining the role these two institutes in the judicial system of the country.
Keywords: justice, security, judicial system, judges, lawyers
Introduction
Doubtlessly, achieving justice and securities in society concerning its authentic connection with providing judicial security of citizens has been always as social troubles of divine
leaders and benevolent of the world. The God on high bids in Quran: O you have become
University lecturer of department of law Payam-e Nour University.3697-19395 Tehran, Iran, PhD. Of Criminal Law and Criminology of the Academic Science of Azerbaijan, Instructor of the law field in the Payam-e-Noor University of Ardabil Parsabad,
Work Place Address: Ardabil - Parsabad - Opposite to the jihade Ashayeri office - Payam-e-Noor university, Home Address: Ardabil - Parsabad Ajirloo Square Angle to the Sahid Beheshti Avenue, zip code: 56917 38584, Phone number: +984532-732190,
Mobile: +989143533625, Fax number: 0452-7289596, E-mail: vshirpour@mail.ru
447
159
believer, rise up for justice and testify to God; however its harmful for you or your father,
mother or your relatives. If one of both parties of claim is rich or needy, again God is more
rightful than you on them, so dont act fancily that consequently will depart from right and
if you shunt or object, absolutely God is conscious to what you do (Surah Nesa, verse 41)
Prophet Mohammad bids: Establishing justice in an hour is more preeminent that 60
years worship and justice to God is the most appropriate order (Moosavi Khomeini, 40
Anecdotes: p17).
IMAM ALI peace be upon him bids about necessity of emirate to protect justice and security in society in 40th discourse of Nahj Al Balaqeh: People need a good or bad ruler till
the believers will be busy in their work and infidels will enjoy in shadow of government,
people will live along establishing government, roads will be secured and poor peoples
rights will be taken from powerful people and beneficent people will have welfare and be
safe from evildoers (Dashti, Translation of Nahj-Al-Balaqeh: p65).
Philosophy of creating and reviving cooperation and thoughts plan among judges and
lawyers should be searched in current condition of the countrys judicial system and its
philosophy in providing security and justice in society. Following public discipline, providing internal security, executing laws, respecting on freedom and individuals rights, peoples immunity from offense, executing justice, following peoples moral and prestige of
society and other rights specified in constitutional law and common laws are out of hardworking judges power of judicial organization of country. The mentioned rights and defense of them consists of inherent rights that human has known it since long time ago and
following it completely in a conflict involving, enjoyment and usage of defending facilities
by individuals are equal and proxy is always a tool for achieving these aims and providing
judicial security and justice and just proceedings which finally leads to satisfy humans justice seeker feeling. Perhaps this slogan which angel of justice with two limbs of attorney
and judgment is able to fly is the most fluent interpretation of close communication of
proxy with judgment in providing justice and security in the society. Thus, having common
and holy aims among judges and lawyer along with protecting and reviving mankinds
rights and settling justice and security in society, makes clear necessity of appearance and
developing such cooperation and thought more than before. In this paper, thoughts among
lawyers and judges has been suggested as fundamental, positive and effective on providing
and developing justice and security in society and investigating and promotion, judges life
and careful and continuous observation and evaluation of judges actions and lawyers activities, creating thoughts culture among lawyers and judges for achieving this important
aim. Of course justice in this writing means that part of special meaning of justice which is
for correct and order executing with speed and courts sentences confidence as accepted
ways and reliable to this important , and aim is not conventional meaning. In this writing,
in the first subject, security and justice is defined, then position and importance of judges
and lawyers and rights and their duties are made clear and present challenges are considered and in the second subject we will discuss and consider necessity of thoughts among
lawyers and judges, effective and preventive elements on this important case.
Subject 1
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Discourse 1: Concept of justice and security

Justice is one of the important elements and is so important in divine systems that God
has known as one of divine prophets prophetic missions aims to lay justice (Surah Hadid,
verse 25) and has ordered to justice and benefaction 9 Surah Nahl, verse 90) and also bids:
Seek the justice that God likes justice seekers (Surah Hojarat, verse 9) and When you
adjudicate God is listener and clear-sighted (Surah Nesa, verse 9).
IMAM Khomeini bids: Justice consists of mid limit among excess and negligence and
overstatement and guiltiness, is of humans high accomplishments; the great philosopher,
Aristotle has said that: Justice is not a part of accomplishment, but is of all accomplishments; and justice which is the opposite of it is not a part of rascality, but is all rascality
(Moosavi Khomeini, topic description of insanity and intellect, P150).
Allameh Tabatabaee has defined justice as: Justice is to give each right owners right to
him and to put in his suitable position (Tabatabaee, Tafsir-Al-Mizan, p371).
RaqebEsfahani has said: Justice is to share equally and its been said that the sky and the
Earth have been solidified based on justice, to aware this if one element of four world elements is more than other elements, world wont be a place of wisdom and discipline
(RaqebEsfahani, Mojam Mofradat Alfaz of Quran, below of justice article).
Security consists of: The confidence that based on it, individuals in a society that they
live have no fear to protect their bodies, prestige, material and spiritual rights (Hashemi,
Human rights and Islamic freedom, p2760).
Thus, achieving this right involves two fundamental securities:
1. To provide peoples security against any kind of illegal offense
2. To provide citizens security with supports that are done by society for each of its
member in order to protect peoples rights and freedom
In this order, security creates duties for people and government, it means that people
need to respect on each other material and spiritual rights and government also has duty:
firstly to legislate and establish administrative and judicial organizations to create security
for people; secondly government himself respect on citizens rights and freedom and
doesnt object it by surrendering against origin of law jurisdiction (the same, p277).
Discourse 2: Lawyers and judges position and importance
Lawyer and judge are Gods titles and it means that everyone cannot be deserved to these titles and their owners are so respectful and valuable and have a serious duty. God bids
in Quran: Surely your God arbitrates among them based on his sentence! (Surah
Naml, verse 8).
Proxy and judgment are a sound, legal and permissible ideology because its existence is
of justice providing elements which providing justice itself is an important and basic topic
in judicial system. In other words, proxy and judgment are basic elements of just trial in
judicial system. Since philosophy is final present and wisdom in just wisdom and also stabilization and adaptation of law without discrimination and points with observing peoples
rights equality in society, doubtless its in a just trial that law adaptation is provided; provided that trial includes just conditions in its real meaning and when this is possible that in
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the first step, right of defending rights is given to both parties according to Islam religion
commands and legislated laws and in the second step conditions and fields of their suitable
defending rights are provided and secured justly, too (Bakhshizadeh, Adaptable comparison of proxy in Iran and Azerbaijan, p135). Today developing and extending jurisprudence and technique of proxy and lack of peoples enough awareness of their rights, defense necessity by judicature lawyer in trials seems to achieve peoples right and also help
the court to settle justice more than before and importance of lawyers role in executing
justice and providing security is so enough that today it is one of the most basic criteria of
justice measurement in Jurisdiction Organization in different societies right of defense
and having a lawyer and independence of lawyers during doing their occupational duties;
because judicial justice is not achieved unless claim parties and their lawyers state their
words freely without any fear and court judge can also make necessary decisions with
complete independence (Asvar, Proxy in penal claims, p78).
Performing responsibilities in judgment and proxy, influences on peoples destiny and
rights and even sometimes destroys it. Then these occupations are different from other
official or free jobs and this difference is unstable in name and convention and in effective measurement or peoples destiny and society.
Discourse 3: Rights and duties of lawyers and judges
1-2-Lawyers rights and duties
Lawyer has duties by accepting proxy occupation in front of society, judicial system of
the country, lawyers association and other co-workers and accepting real and legal bodies
proxy in front of client, claim party, participants in proceedings hearing, court, government, governed commission.
As the lawyer expects to feel freedom and comfort in the court, he himself cant show
his common and natural reactions based on behavior, but he should be always mild mannered and polite and even if he is insulted by claim parties or other attendants in trial, he
should keep his calmness. Of course this is a correct rule and respecting on judge and court
is necessary. Lawyer should set correct petition and complaints and be present in trial
hearing and avoid giving incomplete petitions and as its possible avoid giving bill and in
anyway lots of activities that are permissible and allowable as an origin. Following appearances and formality of proceedings that unfortunately has been obsolete, is the best method and device to increase dignity and credit of trials and judges and all judicial system.
Lawyer cannot do activities in front of public eyes that doing them has no preventions
from others ideas. Of course it is natural that if a lawyer wants to follow occupation dignity
and behavioral principles, he wont have pleasant and attractive life and if he follows normal attractions of life, perhaps he will lose his credit as a lawyer and this causes his guild to
be cancelled, too. Meanwhile the lawyer should be so careful in his relations with friends
and co-guilds and other people and follows origin of temperance completely.
During doing work activities, the lawyer should follow legal necessities and use all expected principles in laws to protect his clients interests. It is clear that no lawyer interferes
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in his clients works without his satisfaction and assigning his allowance, but from one side
accepting responsibility of the clients works in a special quarrel causes the lawyer to be
aware of lots of his clients works willingly or unwillingly that maybe they have no relation
with claim topic. On the other side, presence of file and quarrel causes the lawyer to be
aware of problems of quarrel party, too while he hasnt given this allowance to the lawyer
and is not satisfied with it. This position settles the lawyer in a very delicate position. The
tiniest carelessness in keeping this information which may be proof of secret or not, is
against of occupational moral bases; it means that retelling these data out of judicial authorities or in other clients defense position, is not allowable and acceptable at all. In the
first way, this rule must be also followed about information related to the client. Therefore
the lawyer must avoid retelling what happens between him and his clients in the court or in
his office, even in front of his family members.
Failure to observe this rule additionally may be proof of disciplinary or penal infraction, it
is possible to create lots of nervous pressure for the lawyer and also alter his credit and
reputation and damage his guild and occupation. Defense counsels must extract and propound obvious and hidden meanings of laws so that it leads to provide and secure individual and social rights of the clients; even if sometimes it limits rights of government and
governance. An English judge has said: Judicature lawyer has two enemies: one is the
claim party that is claimer his lawyer has damaged his right in favor of his client by taking
his proxys fee and the other one is the client who believes that the lawyer has taken proxys
fee to take his right without reason that is his right in any way and it should be given him.
One of co-workers has written a poem about this that is readable (Keshavarz, Judicature
proxy pathology, p42):
When a person is in prison, defense counsel is God.
When the danger decreases a little, he says his lawyer is of saints.
When he is free from prison, says his lawyer is as himself.
When its turn to pay proxys fee, the lawyer of that time is a monster or dragon.
Although no more work can be done to reject or reprove this damage, if lawyers always
behave toward client or claim party in frame of laws and following occupational moral
rules and principles politely and justly without ignoring a bit of clients legal rights, it will
be facilitated partly. This politeness and just that is lawyers duty, in some cases can prevent damages caused by claim partys grudge and rancor partly. Although the lawyers have
their political and social believes and points of view and are free in expressing their political and social ideas, they shouldnt do party activities against attorneys association and deploy politically.
The lawyer should follow the clients expediency in his repossessions and activities and
doesnt overstep of what the client has followed him obviously or in his authority based on
clues and convention and habit. Lord Mc. Milan from judicature attorneys of Scotland believes that: Completing balance among lawyers duties that perhaps are against each oth-
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er, is not an easy work and is a masterpiece that its performance is imaginable from a
strong mans side as a lawyer (FeizMahdavi, judicature lawyers duty, p15)
Against all these duties and tasks, the lawyers mustnt be chased or disposed in threat of
chasing or official, economic penal and because of activity that they do according to
known duties and standards and moral principles of their known occupation
(MazaheriTehrani, Consideration of crime of showing off and interference in proxy work,
p186). The lawyers shouldnt be known as enjoying profit like their client or clients because
of doing their duties, in addition, no court or official authority that has known formality
the right of using defense counsel, mustnt prevent knowing formality the lawyers attendance and mustnt prevent the lawyers attendance for defensing his client. The lawyers
against statements that express bona fide in written or oral in order for petition or during
their attendance in the court and other judicial authorities or against administrative authorities, must enjoy penal and civil immunization. Righteous administrative authorities
have duty to be assured that the files information and suitable documents that are in their
allowance or control, are available for the lawyers in enough period of time for presenting
effective judicial co-operation to the clients and this availability must be achieved in the
first possible chance (Tayyebi and Namian, Proxy challenges in following citizens rights,
p201).
Of course in this relation, legislator knows the lawyer effective on social justice development and progress and of original elements of justice execution that witness of this claim is
the same equality and respect of lawyers and judges, prohibition of suspending the lawyer
and penal supporting the lawyer in different laws such as note 3 of unit article authorized
in 1991 in System Expediency Recognition Association and articles 20 and 17 of bill of judicatures Attorneys Association independence.
1-2- Judges rights and duties
Jurisdiction authority and real judgment in society is the biggest and the most important authorities and all religious and faith believe in special importance, especially in
holy ceremony of Islam a position as deputy prophets substitutes has given to a judge. According to Islam religion, judges should be chosen of the most honorable, cleanest, most
liberal people. Based on order of Islam holy ceremony, judge should be an angel look like a
human; because he must be justified of all badness and have all good quality and characteristics of a human, because a judge involves in peoples life, property, petition and reputation and job and basically is their protector, too by acting laws.
In famous sentence of Imam Ali (peace be upon him) to SharihQazi: You are in a position that prophets and substitutes or intercessor are (Horrameli, p1414) sensitivity of
judgment is being shown and makes understand that just and all qualified judges are in
position of prophet and substitutes. Imam Ali bids in famous treaty: Respect on the judge
so high that none of your close friends dont covet penetrating him and protect him against
these people and he should know that his position is not higher than him that wants com-
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plain him. Imam Ali bids about making clear judges condition to Malik Ashtar: You, Malik! Choose the best person among the people for judgment; of people that: facing objectors
with each other doesnt make him angry and grouchy, their lots of approaches dont put
him in hardship, he doesnt insist on his mistakes, it isnt hard for him to turn to God when
its clear for him, he forgets greed and doesnt know enough the little search for understanding matters, he is careful than others in suspicious, is persistent in finding and following because of reason and contention, becomes tired little with frequent approaching of
complaint, has lots of knowledge, forbearance and abnegation, isnt influenced with situations, is patient in works, is more purposeful than all in enmity when right is clear, much
admiration doesnt deceive him (Dashti, Translation of Nahj-Al-Balaqeh, p411).
Having mentioned condition a judge can have good and just judgment that knows jurisdiction and follows it. Aim of jurisdiction manners, are notes that a judge follows them in behavior and speech, in society and judgment meeting, in addition to respect his personality
and dignity, finds a suitable field for just judgment. Of recommendation collection that
prophet Mohammad has counseled Imam Ali and his applied life method and recommendations that has counseled judges and governor-generals as Malik Ashtar, are following
manners (Altabresi, MostadrakAlvasileh, p334 and HorrAmeli, previous, p1414):
_Following complete neutrality in judgment
_Following equality between scuffle parties based on views, speech, sitting and notice
_Complete patience in hearing both parties speaking and not interrupting their words
_Lack of exhaustion, boredom and during judging
_Lack of judgment during hunger, sleepiness and anger
_Not making his voice louder at claim parties
_Keeping grandeur and lack of untimely and much laugh
_Lack of dealing with possible claim parties in public and market
_Lack of hostile banquet lonely
Duty of judicial authority that wont be achieved for judge just by having mentioned
condition and manners, is judicial powers aims and duties in doctrine 156 of constitutional
law in order to achieve justice and extend and develop it and support Gods limits and peoples rights. Judge is charged to argue and document sentence of quarrel and hostility according to doctrine 166th, 167th of constitutional law into law and if there is no sentence in
law, in civil and legal discussions on the basis of Islamic valid sources or valid dictum or
convection and certain habit.
Against all of these conditions, characteristic and strictness, achieving and executing high
aims of jurisdiction organization by judicial authorities depends on having rights and securities for this limb of justice angel. Having independence and judicial immunity and good
livelihood is the most basic rights of judicial authorities in this way. Healthiness of justice
depends on judges independence and his independence depends on providing his independence factors. Judge must be needless about livelihood, dignity and other mankinds
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common need. Imam Ali has noticed to being independent judge a lot and bids Malik
Ashtar about this: Investigate your judges judgments more seriously and extend generosity for him so that his neediness is removed and doesnt need people. Respect on his position a lot based on status and position that none of your close friends doesnt be greed to
penetrate on him and doesnt complain about his conspiracy (Dashti, 2010:p411-412).
Judges independence has been firmed and predicted in doctrine 164th of constitutional law
and judges judicial immunity in article 42 of correction bill of a part of justice administration principles and employing judges authorized in 1954 and during deliberative theory
13/10/1998_7/377.
1-3-Jurisdiction systems damages and insufficiency
The main and basic trouble of jurisdiction system and responsibilities has been much
capacity of files in judicial system of the country for years. Regardless governmental and
judicial systems effort and stratagem in solving judicial and social dilemma by creating a
sub judicial organization called settlement of dispute counsel and also judges duress for
giving monthly statistics, not only hasnt treated any pain in this relation, but also care,
thought and conception have been replaced with speed and increase output and statistics
in jurisdiction systems problems, but also has been caused to create distance and peoples
permission related to jurisdiction system.
Today the most present important challenges in jurisdiction system that has been caused
to accumulate file in this system along a series of other external factors are corruption
presence in body of jurisdiction system, smeary space on administrative employees and
gossips around smeary space dominant on administrative employees, creating suspicion
and pessimism in lawyers and judges relations and lack of thought between these two
limbs of justice angel, tool view and peoples mere generalization toward lawyers, lack of
thought and understanding among administrative employees of jurisdiction system and
lawyers and presence of friction among them, increasing number of without scholarship
and enough proxy work, shortage of (judicial and administrative) human power and lack of
enough care in using and supervising carefully and in time on present hidden and obvious
works in judicial organizations.
If condition and characteristics of the judge, necessary effort and strictness in Islam religion and Shiite religion are noticed to use these justice authorities, we will find out a very
important note that what Islam religion has noticed, in this present era it isnt being noticed a lot! In present era that is century of laws and rules, it is thought that legislating
complicated rules may make people work like machine till possibility of deflection may be
deprived of them; however this thought is completely unfounded and wrong and laws and
rules dont make human, but if laws are more strict and restrictive, thought of scape will be
created more among people. Beside judges judicial work, official and office orders of the
division of the courts that administrative employees do is so important and need accuracy
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in defining condition and attention and supervision on function till the court offices dont
cause to make and create field of corruption growth in judicial organizations.
Perhaps paying attention to this Dr. Katuzians speech shows the depth of this damage:
Some time ago, one of my friends told me that some offices of the courts deal time of trials
10 to 20 million Rials and this caused me to be affected; I wish it wasnt true (Katuzian,
Judicial policy and offices of formal document, p282).
Lawyers and judges have common work area and meet each other imperatively. Generally
continuous and direct relation should create good and creative relationship among workingmen of two occupations. But unfortunately it is not such as it practically; there is a situation similar to peaceful coexistence- as there was in narration of cold war between east
and west blocks- instead of friendship, agreement and thought among people of these two
jobs in the best case.
One of the factors that puts the lawyer under pressure in fronts and various aspects of his
occupational and private life is: wealth hallucination about that lawyers that there is
among community of people, statesmen and in special way in lots of workingmens mind of
judicial positions sub judicial and even judicial authorities administration. These authorities have usually read the same lesson that the lawyer has read, if there is such a hallucination and prejudgment in judicial authorities mind and justice administration offices, such
a conclusion will be formed in his imagination presumably: Both of us have used the same
education study, now he should take proxys fee much more than my monthly- and perhaps yearly fee- for a file that all its trouble responsibility is mine (Keshavarz, previous:
p38).
Perhaps this topic is similar in all occupations. In lots of time when I face an assertive and
educated student in class, at least during days that I dont have enough control on issued
discussions, I dont like the mentioned student a lot that day. It should be often as the
same in judicial authorities such as other occupations. Aware, accomplished and superior
judges on jurisdiction work welcome attendance of claim parties lawyers with observing
dignity and honor and mutual respect, because opposition and aspersion cases in the file
from their side and their clients point of view states with presenting reasons and documents and judges work become easy and are restricted to evaluate the matters and choose
more strong and favorite aspect and reflect on verdict. But a judge who is weak technically
and scientifically, naturally he feels unsafe and sad and for covering his fault and mistakes
and filling emptiness and weakness, not only he wont have good thought with the lawyer
or lawyers, but also he wont often show suitable behavior based on dignity and honor with
this other limb of justice angel. Its clear if we face a position that judicial authorities having knowledge and control and dominance on jurisdiction work, they dont like the lawyers
attendance in the court or dont have suitable behavior with this effective group in achieving justice, damage will be disaster and wastage.
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Perhaps judicial job operators and sub judicial financial corruption is another dilemma
and basic damage of judicial system and present challenges of the lawyers with judges. If
there is an agreement and dealing between one of the claim parties and investigator authorities, the other one of claim parties lawyers appeal wont have any effect and advantage for legal sharing and verdicts of unit procedure and council ideas of legal office
and verses narrations and anecdotes. When disaster increases that lawyers find these kinds
of judicial authorities similar to them; in this manner jurisdiction work changes into
tradesman and proxys work changes into brokerage and this damage will be for judicial power and in final analysis, damage for all government and system.
Other serious damages of jurisdiction system is presence of anti-lawyer judges and anti-judge lawyers because of different matters such as moral, behavior, nervous and even
psychological problems in these two limbs of justice angel. If we as scientists and noblemen also state that rescue way of manhood in justice and achieving justice angel is not obtained except by thoughts of these two limbs, then what is the reason of these approaches
and view presence? What benefit and traces will this kind of view follow? If judge and lawyer are pessimism and suspicious at each other and become far each other, it is natural that
judge wont trust on the lawyer and his speaking and may not pay attention to his reasons
and documents with present pessimism. Also the lawyer imagines that maybe this judge is
bribe lover and his opposite side has given a bribe and thats why his reasons and documents arent paid attention to. If we assume this topic along ill-treatment and noncooperation of some of administrative employees with lawyers, it is natural that the lawyer forgets,
too his position and may be encouraged to do inappropriate activities such as promise or
giving bribe and in this manner a destructive process will be made.
Increasing number of lawyers without enough proxy work makes corruption spontaneously. Other crucial form that the lawyers involve in and finally its disadvantage also enters in
jurisdiction system in a long time is lawyers association competition with center of legal
counsels about issuing proxy allowance that comparison of these two centers has created
inappropriate space along increasing lawyer more, and cause to decrease dignity and honor
of the lawyers.
1-Subject 2
Discourse 1- Judges and lawyers communication
No one denies this reality that society needs lawyer and judge to execute justice; because one issues a judgment to execute justice and the other one defends to execute justice.
Of course it is possible for their duties to be against each other, too and this doesnt mean
that these two want to fight with each other; but the common aspect of both attendances in
the court is justice execution that both of them have taken an oath for it. The lawyers are
backup arm of judges in justice and defending underdogs. Dignity and honor of judges and
lawyers are interfaced with each other. Since keeping justice is duty of both of them, expecting and ignoring dignity and honor of each other should be removed through judges
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and lawyers and replace with concordance, agreement and fair thinking. The lawyers work
is not just to defend the accused or claimant and defendant without being rightful or not;
the lawyer is responsible for guiding client to step in the correct and normal legal way and
to help judgment and to make obvious right and reality and thats why is a companion and
assistant of judges and justice executors. Indeed future of proxy and lawyers achievement
is involved in keeping honor and dignity of this occupation that appears with different situations of human societies (Saket, Justice seeking as a light for legal thought writing,
p538-539).
Discourse 2- effective factors on judges and lawyers concordance
1-2- supervision on judges and lawyers behavior
Continuous and careful supervision on the lawyers and judges activities and behavior
is one of the effective and accelerated factors to provide communication of judges and lawyers and consequently to provide more justice and security in society. Concerning axial role
of judges in achieving just judgment, this right should be clear for people that sovereignty
acts a necessary supervision on judges behavior; because governments are responsible for
executing law correctly guaranteeing desired criterion of judicial manner so that form of
justice executing is one of political governments proficiency measurement standards.
When this importance is achieve that at first, individuals are chosen for keeping jurisdiction position who have health, appropriateness, aptitude and necessary knowledge and
then their manners and operations are under correct control and supervision (Tahmasbi,
Disciplinary supervision process on judges behavior, p210).
Supervision on judicial manner and executing punishment about judges wrongdoing is
one of the matters which were always noticed by governments during the history. In ancient Rome penalty of death was for judges negligence, ancient Iranians didnt know lawful the judges wrongdoing and were so uncharitable on supervision work. Generally, justice in ancient Iran has had important position; there are enough documents since the
Achaemenians dynasty that kings were observer of good process of judicial power and
judges honesty seriously. Also Islamic governments have considered this important case.
Imam Ali knows a man as the most wretched person of people if he isnt appropriate for
the judgment position that he has, and if an ignorant person plays the role of judge among
people unlawfully, he assimilate that person as a fly that is involved in spiders unsound
webs (the same, p211-212).
Imam Alis governmental procedure makes clear his specific notice and sensitivity toward nominating judge matter and supervision on his function. Imam Ali doesnt know
enough to bid Malik Ashtar to numerate choosing judge and emphasize on keeping his independence and neutrality, but orders that judges function should be observed and inspected. It is famous that Imam Ali appointed one of his partners called AbolasvadDueli
a jurisdiction occupation and he was dismissed the same day, he wanted to know the reason of his deposition; Imam Ali bids: I heard your voice was louder than quarrel parties
voice (Heidarzadeh, judges disciplinary chasing, p18).
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1-3- Occupational moral observance

Occupational moral is a collection of appropriate behavioral methods and qualities that
owners of various occupations such as judges and lawyers should observe and also collection of dispraised qualities and activities that day should avoid. Moral is one of important
subjects of Quran; because this divine book has introduced one of the prophets aims as
people refinement. Human wont understand Gods position without achieving appropriate
moral; because human without moral is a dangerous animal that doesnt distinguish between oppression and justice and fires everything and becomes the cause of world corruption (Keshmiri, Moral in Quran from Imam Khomeinis point of view, p293).
About occupational moral of proxy and judgment, discussion is further than their legal
duties and conventional commitments and executing guarantees and unwritten subjects
that their observance is necessary and essential for lawyers and judges based on occupational moral. The most important moral principles are keeping and observing dignity and
honor of proxy and judgment, trustfulness, honesty and good faith, trustworthiness and
safe keeping, respect and humility, decisiveness and appropriate adaptation, possessed desired and conventional scientific authority, observing confidential information and secrecy
and keeping secret, having piousness, justice loyalty and so on.
1-4- Judges and lawyers independence and immunity assurance
As judicial authorities independence and immunity has been predicted in doctrine 167
of constitutional law and article 42 of correction legal bill of a part of justice administration
principles law and employing judges authorized in 1954, also lawyers must have enough
security and assurance in position of executing all his occupational duties without any
threat, fear and prevention and incorrect interference and because of done duties, familiar
standards and moral principles, they mustnt be chased, threatened to chase or administrative and economic penalties. During the time that the lawyers security is in danger for doing their duties, they must be protected by government authorities appropriately. The lawyers shouldnt be known as advantageous as his client or clients for doing their duties.
Meantime no court or administrative authority that has known right of using lawyer formality, mustnt prevent lawyers attendance in order to defend his client unless mentioned
lawyer has been known unqualified based on law or procedure or principles. Thus, the lawyers must have penal and civil immunity, too like judges and members of the parliament of
course by observing occupational moral against statements that they express with good
faith in written or oral for petition or during their attendance in the court or other judicial
authorities or against administrative authorities.
1-5- Judges and lawyers mutual confidence and respect
Today lawyer who is as one of judges and jurisdiction systems powerful arm, is considered as the most unreliable member in jurisdiction system now. Although justice administration proxy is one of the free and independent occupations of the government, because
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of interfering in peoples claims and effort to achieve the most basic aim of jurisdiction system means justice, they must be trusted and relied. Confidence and concordance and elevation of positive thought and without their alloy can help judicial orders to flow fast and
easily- in spite of consequence and verdict. Court can be known as the lawyers work place,
therefore according this way, the lawyer must feel comfort and freedom in that place so
that this freedom and comfort cannot be limited by anything except judges responsibility,
the court and the occupational principles. Judges and lawyers, who are fair and pious,
must believe in others refinement and piousness till its contrary hasnt been proved. Proxy
work is to defend the accused person and client in parallel with executing law and achieving justice, thus a lawyer who defends the accused person in spite of the crime that has
perpetrated and what mental and political interests and benefits he has, he mustnt be
thought convergent and proportional with client based on mental and belief, and the lawyer defends perpetrators of different crimes, he mustnt make judicial authorities angry
and this order mustnt be reason of their sadness in some situations; because the accused
persons defense right is the base of human rights global announcement and international
pact of civil and political right that is confirmed by doctrine 35 th of constitutional law and
assuring article 570 of Islamic penal law and unit article authorized in 1991 of system policy recognition association, are his basic rights and also the lawyer defends the accused of
crime perpetration based on his duty and legal and canonical and moral assignment, not
criminal person. Thus when absolute conviction sentence hasnt been issued, he is still
accused and included doctrine of exemption, not guilty. The concordance of judges and
lawyers based on confidence and neutral respect, provides this possibility that they act in
creative and modern method and dont act passively for forming these relations. This
method causes them to have activity creativeness so that their activities provide claim parties right without using influence and increase chance of executing justice and decrease
tension and anxiety in the court space, too.
1-6- The lawyers instruction and level advancement
Human is in a world at the beginning of 21st century that is completely different from
last world. Continuity of increasing accent of change and evolutions in recent decades in
different social, political, technology, economic and even cultural domains has changed the
conditions generally and has made judges and lawyers and legislators facing new challenges; the conditions that awareness and knowledge advancement and change of view are
basic and necessary for confronting it.
To persuade a person who has no specialization, is so easy. We appeal this note that he
doesnt know these things and become successful in covering our fault and mistakes. But
if our opposite side has knowledge like us or sometimes more than us, the matter will be
complicated and difficult; because he will want us reason and analysis and will not accept
force and unreasonable speaking. If the owner of an occupation is skillful and dominant,
not only he doesnt scare of discussing with another specialized person, but also welcomes
these events; because on one side he has chance to examine his knowledge and on the other side it is possible for him to learn new things. Also the matter is often the same in judi-
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cial authorities. Aware and skillful judges, dominant on judgment always welcome lawyers
attendance of both claim parties, but a person who is weak scientifically and technically,
naturally he feels unsafe and sad (Keshavarz, previous, p39).
1-7- Judges livelihood advancement
Lawyers and judges have common work area and meet each other necessarily. Generally continuous and direct relation should create good and creative relationship among
workingmen of these two occupations. But unfortunately such a relation isnt created because of different reasons consist of wealth hallucination and lawyers earnings.
These authorities have usually read the same lesson that the lawyer has read, if there is
such a hallucination and prejudgment in judicial authorities, mind and justice administration offices, such a conclusion will be formed in his imagination presumably: Both of us
have used the same education, now he should take proxys fee much more than my monthly and perhaps yearly fee. Also negative mentality in judicial authorities will have pest and
disadvantages such as: envy, escape of lawyer (being anti-lawyer) or financial corruption
for judicial authorities. If operator of judicial occupation or sub judicial is corrupt or deviant financially, subject of defense and proxy will be resolved in that authority; because we
awaken a person who is asleep but we cannot awaken someone who shows himself asleep.
If there is an agreement and dealing between one of claim parties and investigator authority, the other one of claim parties lawyers appeal to legal sharing and verdicts of unit
procedure and council ideas of legal office and verses and narrations and anecdotes will
not have any effect and advantage (the same, p38).
Health of judgment work depending on judges independence and his independence
depending on providing independent factors such as providing judges livelihood advancement are effective factors in judges concordance with lawyers. Imam Ali has paid
attention to the judge being independent a lot and has bided Malik Ashtar about it: investigate your judges judgment seriously and extend your generosity and charity so that his
neediness is removed and doesnt need people. Respect on his position a lot based on status and position until none of your close friend are greed to penetrate on him and complain
about his conspiracy.
Imam Ali bided Rofaeh governor of Ahvaz: Avoid accepting presents and gifts and
bided in other place: Each system needs a judge and the judge needs livelihood and food
and this food should be provided with public treasury, not by people (Altabrasi, previous:
p353).
As it is clear in Imam Alis speech, providing judges livelihood is based on need and management of life till the judge doesnt need bribe or gifts. Perhaps it has been extracted of
Imam Alis life procedures that a white check is given to the judge in some countries in
parallel with solving this dilemma which is of concordance damage between lawyer and
judge and naturally judgment and consequently achieving justice and security.
172
Conclusion and recommendations

Providing justice and security of citizens doubtless is provided with achieving justice
and security in society and this order that God has made it clear in Quran and of course has
been prophets and Imams and social troubles of world good thinking people.
Providing and developing security and justice are the most important desire of each judicial organization and the most basic elements of judicial system of each country are
judges and lawyers, too. Because one issues a sentence for executing justice and the other
one defends executing justice, too and common aspect of their both attendance in the court
is the justice execution that both of them have taken an oath for it. Doubtless their quality
and potency and concordance and adaptation are the most survival password of this system and these both are justice angels limbs that create a powerful and effective system. So
continuous and direct communication of workingmen with these two occupations generally should be a good and constructive relationship that unfortunately todays instead of being as powerful arms of judges and jurisdiction system, it is the most unreliable member in
jurisdiction system and this relation is a peaceful coexisting relation in its best situation.
Presence of corruption in jurisdiction system body, polluted space in administrative employees and gossips around polluted space dominant on administrative employees, creating suspicion and pessimism in lawyers and judges relations, tool conclusive mere view of
people toward lawyers, presence of friction among administrative employees of jurisdiction
system, inappropriate increase of number of lawyers and shortage of human power and
lack of enough carefulness in judicial and administrative orders of jurisdiction system, lack
of instruction and lawyers and judges level advancement, low salary of judges and employees of jurisdiction system are collection factors of lack of lawyers concordance and
more adaptation with judges and of the most important present disadvantage and challenges in jurisdiction system.
Since lawyers are backup arms of judges in justice and defending underdogs in keeping
justice and creating security in society and their dignity and honor are tied with each other.
Competing and ignoring each others dignity and honor must be removed through these
two limbs of justice angel and be respected with concordance, agreement and good thinking and this importance will be achieved with continuous and careful supervision on lawyers and judges manner, observing occupational moral, assuring their independence and
immunity, neutral confidence and respect, instruction and level advancement of judges
and lawyers and of course with judges and employees livelihood advancement.
Literature
Asvar, Moharram. Proxy in penal claims, M.A. thesis of penal law and criminology, Ardabil: Islamic Azad university, 2006
Bakhshizade, Taher. Adaptive comparison of proxy in Iran and Azerbaijan, M.A. thesis of
penal law and criminology. Ardabil: Islamic Azad university, 2011
HorrAmeli, Mohammad. Vasayel-Al-Shiah, Qom: Al-E-Beit institute publication, 1993
173
Heidarzadeh, Hadi. Disciplinary chase of judges, Tehran: Azad publication, second edition, 1994.
RaqebEsfahani, Hossein. Mojam Al Mofradatalfaz Al Quran. Tehran: Mostafavi publication, 1993
Saket, Mohammad Hossein. Justice seeking as a light in legal thought writing, Tehran:
cooperative company of publication, first edition, 2006
Tabatabaee, Hossein. Tafsir-al-Mizan, translated by Mohammad BaqerMoosavi. Qom:
Dar-Al-Elm publication, 1987
Tahmasbi, Javad. Process of disciplinary supervision on judges manner, Justice administrative legal magazine, no.76, (2011): p209-319
Tayyebi, Sobhan and Namian, Peiman. Proxy challenges in observing citizenship rights
from global standards point of view, Articles collection of New thinking Conference in
proxy territory. Tehran: Think makers publication. (2012): p195-214
FeizMahdavi, Mohammad Reza. Justice administration lawyers duty. Lawyers
association magazine no.120 (1972): p15-31
Katuzian, Naser. Judicial policy and notary publics offices, legal periodical of law and
political science academy of Tehran University, no.68 (2005): p281-296
Keshavarz, Bahman. Justice administration proxy pathology, bulletin of justice
administration lawyers association of Esfahan, no.63 (2011): p2-23
Keshmiri, Al RianHossein Loon. Moral in Quran from Imam Khomeinis points of
view, articles collection of Imam Khomeinis Quran thoughts conference. First edition,
(2009): p285-301
MazaheriTehrani, Masood. Study of show off crime and interference in proxy activity in
Islamic Republic of Irans right, articles collection of New thinking conference in proxy
territory. Tehran: Think makers publication. (2012): p185-213
Moosavi Khomeini, S. Roohollah. Forty narrations. Tehran: Raja cultural publication
center. (1989)
----------- Description of brain and ignorance enmity. Tehran: Adjusting and trace
publication of Imam Khomeinis institute (2001)
Hashemi, S. Mohammad.Human rights and fundamentalliberty. Tehran: Mizan
publication, (2005)
Mirza Hassan NooriTabrasi, Mostadrak Al Vasayel, vol.9 and 17 in Arabic. Qom:
Publication of Al-E-Beit Institute, (1987)
174

DOI: 10.989765/2016.5.123
Judicial Loyalty Through Dissent or Why The Timing

is Perfect for Belgium to Embrace Separate Opinions
Bart Nelissen448
Table of Contents
Introduction
I)
Some Contours of Judicial Loneliness in Belgium
a)
Secrecy of Deliberation: When Its Raining in Paris
b)
Unus Iudex Jurisprudence or Judging Alone
c)
Open-hearted Judges and Public Scorn
II)
Judicial Loyalty in an Altered Context
a)
Loyalty to the Law and the Inherent Political Role of the Judiciary
b)
Leaders Deserve Trust over Monitoring
c)
Judges as People with Faces and Voices
III)
Separate Opinions or How to Honor the Laws Voice
a)
A Well-established Practice in the USA and beyond
b)
The European Court of Human Rights as Righteous In-between
c)
Belgiums Momentum
Concluding Remarks
PhD Candidate (KU Leuven), Teaching assistant (KU Leuven and Hasselt University) and Legal advisor (Belgian Ministry of the
Interior).
448
175
Introduction
1. Belgian judges may well be among the loneliest of their peers due to Belgiums legal
framework. In an attempt to counter this unfortunate situation, we will start by outlining
some contours of judicial loneliness in Belgium through a brief discussion of secrecy of
deliberations, the wide-spread unus iudex practice, as well as a more recent phenomenon:
judges who ventilate certain aspirations and/or frustrations often end up being the epicenter of fierce public polemics (I). Secondly, we will emphasize that the judicial function and
its prerogatives have undergone significant change over the last decades thus justifying a
new concept of loyalty in order to adequately approach the spreading of critical outcries by
magistrates (II). In a final third part we will briefly state how the introduction of separate
opinions a well-known common law phenomenon in the Belgian system could alleviate, to a certain extent, judicial loneliness while boosting public appreciation for the hard
work judges are expected to deliver on a daily basis in a growingly pluralist society. The
European Court of Human Rights (ECHR) constitutes a valuable example in this respect
(III).
I)
Some Contours of Judicial Loneliness in Belgium
a)
Secrecy of Deliberations: When its Raining in Paris ...
2. Belgiums legal system is thoroughly impregnated by the underlying principles of French

revolutionary law, the influence of Napoleonic Codes reaching far beyond its todays
neighboring countries such as Belgium and Holland. It is also commonly accepted that
Frances leading Enlightenment philosopher MONTESQUIEU saw only the legislative and the
executive powers as political(ly relevant) in the narrow sense of the word, judges, according to the popular lecture of his De lEsprit des Lois (1748), being no more than the mouth
that pronounces the words of the law, mere passive beings, incapable of moderating either
its force or rigor.449 It follows that a mere syllogistic application of pre-established legal
instructions is the sole task of a dutiful judge, colorfully depicted by WEBER as a vending
machine into which the pleadings are inserted together with the fee and which then disgorges the judgment together with the reasons mechanically derived from the Code.450
3. The secrecy of deliberation is supposed to support this aura of mechanically derived
conclusions from all-foreseeing legal texts. This outlook on the judicial function has not
MONTESQUIEU, Spirit of Laws, Book VI, Chapter 2, as consulted through:
http://press-pubs.uchicago.edu/founders/documents/v1ch17s9.html. For an interesting reinterpretation of his teachings, see
however R. FOQU, De rechter is het sprekende recht in F. EVERS (ed.), Kiezen tussen recht en rechtvaardigheid, Brugge, die Keure,
2009, (79) 82, where the author suggests a much more sophisticated vision on the judges role below the surface of this commonly accepted conception. According to this author, Montesquieu, who designated the judge as un pouvoir invisible et nul, meant to
raise the fundamental insight that the judicial function consists in ventilating continuously and without any political voluntarism
the so-called sprit gnral of which a legal order is the representation and the crystallization.
This reminds of DWORKIN and his Right Answer Thesis according to which a judge (Hercules) is supposed to find the unique, legally
correct answer to a legal dispute from a reinterpretation of law as a whole (cf. R. DWORKIN, A Matter of Principle, Cambridge, Harvard University Press, 1985, 119).
450 Cf. L. A. COSER, Masters of Sociological Thought: Ideas in Historical and Social Context, New York, Harcourt, 1977, 231.
449
176
changed much, at least when we only look at the current texts of the French Codes of civil
and criminal procedure. Article 448 of the former stipulates that the judges deliberations
are secret (Les dlibrations du juge sont secrtes), whereas article 357.2 of the latter
imposes that at the end of the deliberation the judge writes, or has secretly done so, the
word yes or no on a table at his disposal in such a way that nobody can see his vote (Il
crit la suite, ou fait crire secrtement, le mot oui ou le mot non sur une table
disponible de manire que personne ne puisse voir le vote inscrit sur le bulletin). Prior to
their entering into office, French judges more overly have to take an oath according to
which the secrecy of deliberations is to be kept religiously (garder religieusement le secret
des dlibrations), a choice of words that may indeed surprise in a country wishing to be
exemplary lay.451
4. The old saying when its raining in Paris, drops of rain are falling in Brussels also
proves its worth in our context: there is, indeed, no doubt as to whether secrecy of deliberation holds under Belgian law.452 This may surprise since the Belgian Code of civil procedure (CCP) does not impose it as such and since its counterpart in criminal law only does
so in article 343 when it comes to trials before a Court dassises.453 Moreover, the oath
formula that Belgian judge have to take before entering into office only comprises fidelity
to the King, obedience to the Constitution and to the Laws of the Belgian people and does
not expressis verbis deal with secrecy of deliberations.454 To a great extent, the current
state of affairs can therefore be said to follow directly from judicial practice itself given the
fact that both the Belgian and the French Cour de cassation have been hammering rigorously on the principle for ages. In France for example, the Court stated that mentioning
that a verdict was unanimously reached already amounted to a violation of secrecy of deliberations.455
5. It must be stressed, however, that a judge does not violate this secrecy by simply giving
the reasons for a verdict.456 The (constitutional) obligation under Belgian law to motivate
judgments (art. 159 Const.) would otherwise remain dead letter. A complicating factor is
nevertheless that neither the French, nor the Belgian Court de cassation are known for allowing much insight into the precise motives that support their case-law.457
For a more elaborate approach of the topic, see: Y. LECUYER, Le secret du dlibr, les opinions spares et la transparence,
Rev. trim. dr. h. 2004, Iss. 57, (197) 202 et seq.
452 See e.g. L. ARNOUT, Strafrecht en strafprocesrecht, Mechelen, Kluwer, 2006, 413, nr. 9; C. VAN DEN WYNGAERT, Strafrecht en
strafprocesrecht in hoofdlijnen, Antwerpen-Apeldoorn, 2009 (7th revised edition), 1192;
P. MARTENS, Sur les loyauts dmocratiques du juge in J. VERHOEVEN (ed.), La loyaut. Mlanges offerts Etienne Cerexhe, Brussels, 1997, (249) 264 et seq.
453 An albeit rather seldomly assembled ad hoc jurisdiction where e.g. murder cases are judged with the help of a jury. The vast
majority of criminal cases are tried before the Tribunaux de police and Tribunaux correctionnels.
454 Cf. Art. 2 Decret 20 juillet 1831 concernant le serment la mise en vigueur de la monarchie constitutionnelle reprsentative,
MB 20 juillet 1831: Je jure fidlit au Roi, obissance la Constitution et aux lois du Peuple belge.
455 Cass. fr. 9 November 1945, Gazette du Palais 1948, nr. 1, 223, as cited in Y. LCUYER, o.c., 199.
456 See e.g. Cass. 14 October 2009, nr. P.09.1196.F, accessible through www.cassonline.be.
457 Inspirational comparative reflexions concerning the argumentative and motivational practice of the highest courts in Belgium
and France can be found in: M. ADAMS, De argumentatieve en motiveringspraktijk van hoogste rechters: rechtsvergelijkende
beschouwingen, RW 2008-09, 1498-1510.
451
177
6. In spite of its pedigree going back to guillotine era and, even further, to canon law,458
hopeful signals can be found in more recent work of some of Belgiums most renowned legal scholars who have criticized the above-mentioned principle. Doing so, Professor
STORME459 pleaded for a revision, at least at the highest judicial level, of the concept that in
se prevents the acceptance of separate opinions.460 Professor MARTENS, the former Frenchspeaking president of the Belgian Constitutional Court, had already suggested about a decade earlier that secrecy of deliberations should be revised, albeit only modestly.461
b)
Unus Iudex Jurisprudence or Judging Alone
7. If secrecy of deliberations and its correlate, namely that judges are not allowed to express disagreement or even reserves regarding the verdict that was collegially delivered,
exacerbates rather than mitigates judicial loneliness, then the practice of unus iudex jurisprudence, with a single judge presiding the trial and deciding alone, seems to do so a fortiori.
8. Remaining but a rather rare phenomenon until the mid-nineties of last century, the
unus iudex practice has spread intensely ever since in order to do away with Belgiums
considerable judicial delay and to comply with budgetary rationalization. A second section
to article 195 of the Code of civil procedure (CCP) was indeed adopted to allow for an even
swifter assignment of single judges to adjudicate cases.462 Worries that were raised in the
Senate concerning its possibly negative impact on the verdicts quality as well as on the
working atmosphere for the judges themselves who are no longer able to confer with colleagues, for instance could not prevent the proposition from making it through the legislative procedure.463 Even a perfectly reasonable suggestion to require at least some seniority in the judiciary can be easily overturned. The judge only has to be deemed fit for the job
by the tribunals president regardless of the number of years spent on the bench who
previously has to consider the motivated, written opinion of both the Kings prosecutor
(procureur du Roi/ procureur des Konings) and the president of the local bar (btonnier/
stafhouder). Unsurprisingly, judges who have to deliver verdicts on their own have become
(very) numerous as a result.464
c)
Open-hearted Judges and Public Scorn
Y. LECUYER, o.c., 201 et seq.

M.E. STORME, Pleidooi voor separate opinions in de rechtspraak, De Juristenkrant 187 (April 8th, 2009), 10.
460 P.J. REES and P. ROHN, Dissenting Opinions: Can they Fulfill a Beneficial Role?, Arbitration International 25/3 (2009), (329)
337.
461 P. MARTENS, o.c., 268, where the author emphasizes that secrecy of deliberation should be upheld when it comes to judging
persons and the choice of a solution. ([...] cest sur lapprciation des personnes et sur le choix de la solution quil [i.e. le dlibr]
doit rester secret).
462 Law of 21 January 1997, MB 25 March 1995.
463 The report of the discussion in the Senates Justice Commission (7 January 1997) can be found via www.senate.be.
464 For a critical discussion of the issue, including a historical overview, see: P. T RAEST, Enkele bedenkingen over de alleenzetelende rechter in strafzaken in F. DERUYCK et al. (eds.), De wet voorbij. Liber amicorum Luc Huybrechts, Antwerp, Intersentia,
2010, 415-428.
458
459
178
9. Just as the judges working in team are not allowed to express even their most profound
dissent, and the judges who are de facto prevented to even confer with peers prior to their
verdict due to generalized unus iudex practice, Belgian magistrates whose opinions both
inside and outside court have given rise to sharp debates in the Parliament, are becoming
increasingly numerous:465 acquitting a thieve because previous, unexecuted convictions
had provoked the new facts; ordering a Jewish citizen to leave the courtroom because he
would not take off his kipp; stating that Catholic schools are far superior to others; asking
out loud whether homosexual couples sharing the same roof are not ipso facto disrupting
public order and morality; considering that people who expose wealth in impoverished
neighbourhoods should expect to be home-jacked; demanding that judges be once more
labelled politically, to name but these examples. It is obvious that these expressions are
difficult if not impossible to reconcile with the traditional image of a judge as a passive being and the mere mouth of the law. Judges are indeed no longer lost in collegial anonymity
when they have to decide alone.466
10. What worries, however, is that a judge who discretely fulfilled her duties was (conditionally) sentenced for violation of, in casu, her professional secrecy, yet another instrument that can be used, be it only in a malicious way, to further isolate the men and women
having to end conflicts in a socially acceptable way. This striking case was part of the highly
controversial Fortis-saga467 where one of the three judges, Christine Schurmans, was condemned for having conferred with a trusted and retired colleague prior to the verdict. The
Court of Appeals (Court dappel / Hof van beroep) found that by (partly) communicating a
draft judgment with the names of the parties involved, whether or not the sole aim was linguistic verification, she had committed an imprudence amounting to a violation of her professional secrecy.468 According to her own words,469 judge Schurmans had sought the advice as a result of insupportable tensions within her three-headed bench which eventually
led to her refusal to sign the verdict adopted by her two peers, thus jeopardizing yes indeed secrecy of deliberations...
II)
Judicial Loyalty in an Altered Context
a)
Loyalty to the Law and the Inherent Political Role of the Judiciary
For a more elaborate outset of the topic see our: B. NELISSEN, Deontologische codes of deugden voor (te) openhartige magistraten?, RW 2011-12, 806-823.
466 P. MARTENS, o.c., 255, with references.
467 The Fortis-case led i.a. to the fall of the Belgian federal government in 2009 after the leading magistrate of Belgiums Cour de
cassation had sent a letter to the President of the Parliament signalling what seemed to be political attempts to alter an imminent
verdict in the case surrounding the take-over of the Belgian branch of a major bank (Fortis) by its Dutch competitor (ING). An
instructive overview of judgments, surrounding press releases and coverage by leading newspapers can be found through:
http://fortisgate.wordpress.com/
468 Ghent (1st Chamber) 14 September 2011, nr. 129/23/2010, accessible through: http://fortisgate.wordpress.com/publicdocuments/15-judgment-ghent-court-of-appeal-14-september-2011/
469 Interviews on 17 September 2011 in both De Morgen (www.demorgen.be) and De Tijd (www.tijd.be).
465
179
11. Traditionally, judges are foremost supposed to be loyal to the law.470 The aforementioned oath clearly indicates that such remains the case for Belgian judges, implying at first
sight a subaltern position with respect to the King, the Constitution, and statute law. De
facto however, it is the judge whether constitutional, judicial or administrative who
has a considerable discretion due to elastic formulations of the laws allowing for its guardians to simultaneously determine their meaning471 thus playing a truly political role, at least
when we define politics as the art of dealing with conflict, power and incomplete information.472 So-called catch-all notions are indeed omnipresent in the wording of legislation,
which subsequently has to be interpreted by judges. Moreover, the European Court of Human Rights (Strasbourg) confirmed in its leading Sunday Times-case that not only statute
law, but also established case-law falls under the scope of law.473 Had she decided otherwise, the Court would most surely have endangered its authority in the eyes of the most
important common law system within the Council of Europe which is already known for its
critical attitude towards Strasbourg case-law.474
12. More fundamentally, judges in liberal democracies are increasingly forced to fill the gap
left by authorities who should legitimately occupy it (i.e. the legislative and the executive
branch) with considerable psychological insecurity due to the loss of identifying guidelines.475 Both the legislative and the executive branch are often incapable to resolve social
disputes, the task of producing the necessary law shifting to the judiciary as a result, a
phenomenon the French call la judiciarisation du droit.476 Although the law is necessarily incomplete, judges are indeed supposed to act as if such were not the case.477 What is
problematic from this perspective is that under current Belgian law judges are, so to speak,
left on their own to detect applicable instructions in a set of vague rules. The absence of
clear boundaries may lead to an imperialistic attitude by some magistrates since all jurisdictions tend to liberate themselves from the barriers one thought could limit their auton-
C. MATRAY, La rforme de la discipline judiciaire, JT 2003, 821 et seq.

P. MARTENS, o.c., 249.
472 G. DIERICKX, De logica van de politiek, Antwerp/Apeldoorn, Garant, 2005, 302-303.
473 ECHR (Plenary) 16 April 1979, The Sunday Times vs. UK, 47-49, www.echr.coe.int, where the Court stresses that [...]the word
law in the expression prescribed by law covers not only statute but also unwritten law. [...] It would clearly be contrary to the
intention of the drafters of the Convention to hold that a restriction imposed by virtue of the common law is not prescribed by
law on the sole ground that it is not enunciated in legislation: this would deprive a common law State which is Party to the Convention of the protection of Article 10 (2) (art. 10-2) and strike at the very roots of that States legal system.
474 See e.g. the opinion of British Law Lord HOFFMANN: We cant allow Strasbourg to lay down the law, The Times, 6 April 2009,
accessible through
www.timesonline.co.uk/tol/comment/columnists/william_rees_mogg/article6040951.ece.
475 P. MARTENS, o.c., 254-55, quoting C. CASTORIADIS, La monte de linsignifiance, Paris, Seuil, 1996, 2.
476 Cf. J. VANDERLINDEN, Ouverture in X., Convictions philosophiques et religieuses et droits positifs, Brussels, Bruylant, 2010, 99:
Le phnomne de la judiciarisation du droit dans le sens troit du transfert de la production du droit du pouvoir lgislatif au
pouvoir judiciaire est souvent perue comme lune des caractristiques contemporaines de lvolution des systmes juridiques. Elle
est tout autant perue comme un signe de la faiblesse du pouvoir politique incarn dans le parlement et dont loutil de production du
droit est la loi. Dans son incapacit trancher les grands dbats de socit, le lgislateur en transfre facilement la tche au juge, que
ce soit en demeurant silencieux ou en lui demandant un avis pralable ladoption dune lgislation qui sera le plus souvent
conforme cet avis..
477 Or as the French put it: La loi est incomplte, mais le juge doit faire comme sil nen tait rien (J.-L. GARDIES, Spcificit du
dialogue juridique, Archives de philosophie du droit, Paris, Sirey, 1984, (169) 173, quoted in I. PARIENTE-BUTTERLIN, Le droit, la
norme et le rel, Paris, PUF, 2005, 162).
470
471
180
omy,478 especially since the Belgian judge was found competent to censor both activity
and inactivity of the executive (1921), the judicial (1991), and even the legislative (2006)
branch.479 What does surprise however in this altered context, is that society continues to
expect clear-cut solutions from judges in the absence of all-foreseeing law and that Belgian
judges remain punishable when they refuse to adjudicate, even when the law is unclear,
tacit or obscure (art. 5 CCP and art. 284 Criminal code).
13. Duly aware of the multiple meanings the concept of loyalty can have, the aforementioned MARTENS distinguished five of them, linking each kind to a different aspect of judicial functioning: the magistrates statute (loyaut statutaire), the social context (loyaut
sociologique), the deliberation in which judges are engaged (loyaut dlibrative), the
way a verdict is sold to the public (loyaut argumentative), and the preservation of liberties and fundamental rights enacted in European treaties (loyaut europenne). This
instructive distinction already corroborates in itself the changes we have just come to mention.
b)
Leaders Deserve Trust over Monitoring
14. Now that judges are perhaps more than ever able to free themselves from the revolutionary straitjacket used to designate them as mere bouches de la loi, tokens of trust
seem more welcome than manifestations of mistrust among which we count the harshly
imposed, but somewhat outdated, secrecy of deliberations, the public polemics resulting in
stricter professional codes of judicial conduct being advocated once magistrates do speak
out and, more in general, the numerous pleas to do away with political interventions by
magistrates. Empirical research in contemporary management literature indeed illustrates
that trust usually works better than monitoring.480 Or as former managing director (JP
Morgan) and bestselling author Chris LOWNEY put it not long ago:
Everyone knows that children learn and perform more productively when they are raised,
taught, and mentored by families and teachers and coaches who value them as important
and dignified, who set high standards, who create environments of love rather than fear.
P. MARTENS, o.c., 254 (our translation).
P. MARTENS, Les juges ne gouvernent pas: ils grent tant bien que mal une dmocratie du ressentiment, de la controverse, et
de la dfiance, 1-2, accessible through:
http://dev.ulb.ac.be/droitpublic/fileadmin/telecharger/theme_2/contributions/MARTENS-2-20070429.pdf.
See also STORME, M., Onafhankelijkheid van de rechterlijke macht: een inleiding, in F. FLEERACKERS en R. VAN RANSBEECK (eds.),
Recht en onafhankelijkheid. Gerechtelijke macht in perspectief, Brussels, De Boeck en Larcier, 2008, 20 and 32. In the Netherlands
the situation is not fundementally different: P.P.T. BOVENDERT et al., Rechterlijke organisatie, Rechters en Rechtspraak, Deventer,
Kluwer, 2008, 6, with numerous references. An important nuance difference is however to be stressed between judicial and legislative creation of law insofar as a judge doesnt have the right of initiative and furthermore has to limit himself to the case before
him:
M. ADAMS, A government of laws, not of men? Over recht, macht en de democratische legitimiteit van rechtsvorming door de
rechter. Een toepassing in de context van trias politica en vage normen, CDPK 1999, (173) 190.
480 C.W. LANGFRED, Too Much of a good Thing? Negative Effects of High Trust and Individual Autonomy in Self-Management
Teams,
Academy
of
Management
Journal
2004,
Vol.
47,
385399,
accessible
via
http://mason.gmu.edu/~clangfre/Negativeeffects.pdf. This author nuances however the generalized preference for trust over
monitoring when it comes to achievements within groups.
478
479
181
Why have we somehow convinced ourselves that our adult needs are so different? The
best teams Ive been on have thrived precisely because there was trust, mutual support,
real respect for each others talents, real interest in helping others succeed, and a willingness to hold each other accountable to high standards so that each of us might realize our
fullest personal and team potential.481
15. LOWNEY describes love in this context as engaging others with a positive attitude that
unlocks their potential. It follows that we should cherish rather than intimidate people
who are willing to take up responsibility within a system that has lost its obviousness.
Their willingness to continuously improve themselves will turn out to be most useful in a
society which can only benefit from judicial loyalty to the ideas that shape our institutions
(i.e. institutional loyalty) rather than personal 482 loyalty (to superiors etc.).
c)
Loyal Judges as People with Faces and Voices
16. Even fierce criticism by judges does not necessarily indicate disloyalty entailing inability to further assume the great responsibilities that come with judicial office. Quite the opposite, we would say. When judges ventilate discontent and when they propose ways in
which the deficiencies they perceive as public authorities and therefore privileged witnesses could be mended, this rather seems to demonstrate a loyal commitment society
should embrace.
17. Loyalty in this respect (i.e. loyalty towards an institution) presupposes, according to
Professor PATTYN, a critical identification with the objectives of the institution one is committed to. As a consequence, the modification of the institutions objectives will entail reflexion by the individual as to whether the new ideal(s) still respond(s) to the motivation
that enabled the subjects loyalty in the first place. If such is not the case, than the individual will ventilate his discord by scrutinizing the arguments that have led to the new point of
view. Loyal people have, in other words, faces and voices: they will not allow themselves to
be taken for a ride. Their genuine commitment makes them the best servants one can
imagine but at the same time prevents them from being considered like pawns that can be
used to any purpose.483
18. Assuming furthermore that the value of loyalty becomes particularly clear when people
are confronted with uncertainty regarding the decision that is to be taken, 484 from a mere
transposition of these valuable findings to our context follows that judges ought to be mo(Our accentuation) The quote comes from the transcript of a lecture the author gave at the 20 November 2010 UCSIA symposium on Leadership and that was subsequently published in Dutch: C. LOWNEY, Wat leiders uit de eenentwintigste eeuw kunnen
leren van Jezueten uit de zestiende eeuw, Streven November 2011, (910) 920-21.
See more in depth: C. LOWNEY, Heroic Leadership. Best Practices from a 450-Year-Old Company that Changed the World, Chicago,
Loyola Press, 2003, 330 p.
482 Cf. S.S. SOURYAL, and B.W. MCKAY, Personal Loyalty to Superiors in Public Service, Crim. Just. Ethics 1996, (44) 52, where the
authors highlight that no evidence had been found to support the view that supererogatory acts are products of personal loyalty.
Moreover, they believe that those acts may have nothing to do with personal loyalty but everything with professional commitment.
483 The line of thought in this paragraph is borrowed and freely translated from: B. PATTYN, Loyaliteit, motivatie en erkenning,
Ethische Perspectieven 2007, Vol.4, (35) 44-45.
484 Ibid., 35.
481
182
tivated in stead of intimidated if we want to avoid them the Laws voices to loose
their strive for excellence when such is probably needed more than ever. After all, judges
are constantly working with rules that per se require interpretation prior to adjudication.
Their discord should therefore be honoured, rather than suppressed.
III)
Separate Opinions or How to Honor the Laws Voice
a)
A Well-established Practice in the United States and beyond
19. One of the ways to recognize the individuality of judges could be to embrace an already
well thought out concept to express judicial findings, should these differ from their (direct)
peers: separate opinions. Although their adoption has already been suggested in Belgian
doctrine,485 only very limited enthusiasm, if any, has yet been expressed in their favor. This
surprises when we look at the fertile scholarship as a result of their existence in common
law countries and particularly in the United States with their highly influential Federal Supreme Court as well as their judicial activism throughout history.
20. Taking into account the considerable number of fragmented decisions, scholars who
are studying the precedential value of Supreme court case-law have also begun analyzing
the separate opinions in this respect and not only those expressing dissent. Considerable
scholarly efforts have indeed been undertaken to analyze the meaning, the added value and
the influence of concurring opinions. In his lucid article, KIRMAN for example deplores
that:
[e]arly defenders of the separate opinion blurred the sound distinction between concurrences and dissents. They argued that separate opinions reflect judicial responsibility, improve the quality of opinion writing, and moderate the influence of an erring majority.486
21. He therefore convincingly contends that more scholarly attention should go to concurring opinions and that a distinction ought to be made between concurring opinions from
the majority (simple concurrences) and those from the minority (concurrences in judgment). Doing so, both scholars and lower courts could minimize the precedential chaos
that would rise when decisional force were to be given to a concurring opinion contradicting its corresponding majority opinion the one that does have such force.487
22. Fully realising that a judges personality and his power to convince ultimately has considerable impact on the outcome of deliberations in which he or she is engaged, it is most
Cf. supra, footnote 12.

I. KIRMAN, Standing apart to be a part: the precedential value of Supreme Court concurring opinions, Colum. L. Rev., 1995, Iss.
8, (2083) 2019, footnote 3.
487 Ibid.
485
486
183
interesting to see that analyses are available of a single-judges trajectory throughout the
years, both highlighting constant features as well as restatements.488
b)
The European Court of Human Rights as Righteous In-between
23. Closer to home, Belgium might easily convince itself of the beneficent role of separate
opinions when considering the importance they have had since the very beginning of
Strasbourg case-law. As a founding Member State of the Council of Europe, Belgium
agreed upon the provision enabling the ECHR judges to add separate opinions to the
Courts verdicts.489
24. Although secrecy of deliberations is also honoured within the ECHR,490 the possibility
to attach a separate opinion has given rise to very interesting research, as shown for instance in a British study conducted by WHITE and BOUSSIAKOU.491 These authors conclude
that the extent to which a judge joins his/her individual voice to a Courts verdict through a
separate opinion, is largely determined by his/her temperament, shaped both by his/her
prior experience and his/her value set. They furthermore estimate that it are the differential views of the requirements of a democratic society, reflecting the value pluralism at the
heart of the Convention, that account for most of the dissenting opinions. Research by the
Dutch scholar BRUINSMA has furthermore shown a connection between the background of
the judges composing the Courts Grand Chambers (academia, judiciary, etc.) and their a
priori favorable attitude towards either the Raison dEtat (i.e. the defending Member
State) or the applicant.492
25. Remaining the most developed scheme of international human rights protection with
the Court as the most active judicial organ in the field,493 it is evident that its guidance shall
not be neglected when looking for inspiration on how to adapt a judicial system to contemporary challenges. One of these challenges is to deliver tailor-made verdicts that simultaneously transcend the matter of the facts brought before the Court. Given its everincreasing caseload494 a shared phenomenon throughout western democracies where
An impressive example of such undertaking is to be found in: R.F. BLOMQUIST, Concurrence, Posner-Style: Ten Ways to Look at
the Concurring Opinions of Richard A. Posner, Alb. L. Rev. 2008, 37-113, where the author didnt limit himself to an analysis of
the opinions of this renowned scholar and Court of Appeals Judge (7th Circuit) but also explored some larger goals of judicial
concurring opinions, in a broader perspective.
489 Article 45, 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter: the Convention)
indeed foresees that any judge shall be entitled to deliver a separate opinion if a judgment does not represent, in whole or in part,
the unanimous opinion of the judges.
490 The Court stressed this in article IV of its Resolution on Judicial Ethics as adopted by the plenary Court on 23 June 2008, accessible through www.echr.coe.int > How the Court works > Judicial ethics.
491 R.C.A. WHITE and I. BOUSSIAKOU, Separate Opinions in the European Court of Human Rights, Hum. R. L. Rev. 2009, (37) 59, with
references.
492 F.J. BRUINSMA, The Room at the Top: Separate Opinions in the Grand Chambers of the ECHR (1998-2006), Recht der Werkelijkheid,2007, Iss. 2, (7) 21, accessible through
http://igitur-archive.library.uu.nl/law/2008-0613-200337/UUindex.html.
493 Cf. J.G. MERRILLS, The development of international law by the European Court of Human Rights, Manchester, Manchester university press, 1993 (2nd Ed.), ix.
494 On 31 October, no less than 153.850 cases were pending before one of the Courts judicial formation: www.echr.coe.int > statistical information > pending cases.
488
184
judges also seem to take over the role once left to the clergy495 the Court risks to succumb
to formalism in spite of its obvious and honorable commitments. In this respect, WHITE
and BOUSSIAKOU welcome the efforts deployed in well thought out separate opinions, concluding their article with the observation that:
[s]eparate opinions have been symbolic in the creation of a European human rights discourse because they are personal voices in that discourse which qualify the institutional
voice of the Court. Strasbourg judges respect each others views and despite the workload
do not shirk deeply held personal responsibilities to state their views where they disagree
as to outcome or reasoning in cases coming before them. Those personal voices are to be
welcomed as an antidote to an increasingly formulaic style of judicial reasoning in the
judgments of the Court.496
c)
Belgiums Momentum
26. Numerous reasons can therefore be given as to why the actual Belgian context lends
itself perfectly for a mentality change regarding separate opinions.
First, the Belgian justice system as a whole faces an enduring and well-documented crisis
of confidence.497 Secondly, the Belgian context does not drastically differ from that in other
countries where parliamentary democracy as a whole is also suffering serious blows (e.g.
the diminishing tension between the legislative and the executive branch). Thirdly, the
aforementioned public outcries by magistrates have become very numerous over the last
few years with fierce debates as a result. Fourthly, renowned Belgian scholars have already
advocated the adoption of separate opinions,498 rightly problematizing the formality and
conciseness la franaise of the motivational practice of Belgiums highest courts.499
27. Last but not least, Belgium already has a top-level judge within the ECHR whose separate opinions have deeply impressed the international legal community. Franoise
TULKENS, one of the Courts actual Vice-Presidents, is known for her genuinely loyal and
therefore critical500 stance towards Strasbourg case-law. Doing so, she appended an extraordinary dissenting opinion to the final judgment in the Leyla Sahin case (2005) opposing a Turkish medical student to her government with regard to the ban on wearing Islamic
Parallels are indeed drawn between judges on the one hand, and priests (P. LEGENDRE, Lempire de la vrit, Parijs, Fayard,
1983, 51-52; F. RIGAUX, La loi des juges, Parijs, Odile Jacob, 1997, 260, who mentions a sacralit de la loi, jointe la saintet confre aux prtres du culte nouveau) or even popes, on the other hand (R. DWORKIN, The Judges New Role: Should Personal Convictions Count?, International Journal of Criminal Justice, 2003, 11-12, referring specifically to constitutional judges; R. DWORKIN,
The Secular Papacy, in R. BADINTER, S. G. BREYER (eds.), Judges in contemporary democracy: an international conversation, New
York, New York University Press, 2004, 67 et seq.).
496 R.C.A. WHITE and I. BOUSSIAKOU, l.c., 60.
497 Three consecutive so-called Justice Barometers (Justitiebarometers / Baromtres de la Justice) were used to measure public
confidence in Belgiums law enforcement machinery on a quantitative and qualitative level: S. PARMENTIER, G. VERVAEKE, J.
GOETHALS et al., Justitie doorgelicht. De resultaten van de eerste Belgische justitiebarometer, Ghent, Academia Press, 2004, 118p.;
HOGE RAAD VOOR DE JUSTITIE, De Belgen en justitie in 2007. Resultaten van de tweede justitiebarometer, Brussels, Bruylant, 2007, 76
p.; HOGE RAAD VOOR DE JUSTITIE, De Belgen en justitie in 2010. Resultaten van de derde justitiebarometer, Ghent, Story, 2010, 172 p.
498 Cf. supra, footnote 12. See also: M. VAN HOECKE, Law as communication, Oxford, Hart, 2002, 204.
499 See also the aforementioned M. ADAMS, l.c., 1498-1510 and R.C.A. WHITE and I. BOUSSIAKOU, l.c., 60.
500 Cf. supra, 17.
495
185
veils that had caused her expulsion from university.501 In its Grand Chamber judgment, the
Court unanimously decided that articles 8, 10 and 14 of the convention had been violated,
and furthermore judged with sixteen votes to one that of the Belgian judge that article
9 of the Convention and article 2 of its First Additional Protocol were not violated. No
wonder, this judgment and its dissenting opinion received worldwide scholarly attention in
the following years.502 After more than a decade of Strasbourg experience, judge TULKENS
remains relentlessly committed to her quest for justice as her separate opinions often
endorsed by her peers continue to show.503
Concluding Remarks
28. On the past pages, we have made the case for separate opinions to be introduced in
Belgiums legal framework. After pointing out both the institutional and political reasons
for what can be considered judicial loneliness, we have shown that judicial loyalty as conceived in French revolutionary law no longer constitutes an adequate response to the obvious reality of Belgian judges standing up for what they deem to be necessary criticisms to a
system that has undergone significant change. After proposing an alternative concept of
loyalty, we have then contended that the time for Belgium to adopt a well-known feature of
(not only) common law has never been better.
29. When it comes to judges assuming a more prominent role in guiding their polis, common law systems have a considerable advantage. Despite the controversy as a result of the
recently appointed USSC Justice SOTOMAYOR who stated that Courts [of Appeal] is where
policy is made,504 a lot of truth lays in it. Ethically speaking, the issue is indeed not who
delivers the message but what the message is.505 Next to focussing on how the French judicial system will evolve, it is therefore commendable that Belgian authorities start by drawing more inspiration from countries with a laudable experience when it comes to cherishing judges whose opinions constitute a true enrichment of the public debate (e.g. the
aforementioned judge POSNER).
30. If judges resign as a result of defeatism which, by the way, increasingly often seems
to be the case in Belgium what do ordinary citizens have to think? And although it may
not be necessary for a society to have each of its members being fully committed to its inFor an elaborate discussion of this case in its broader context, see: R. REBOUCH, Substance of Substantive Equality: Gender
Equality and Turkeys Headscarf Debate, 24 Am. U. Intl L. Rev. 2009, 711-737.
502 See among many others: A. ULUSOY,The Islamic Headscarf Problem before Secular Legal Systems: Factual and Legal Developments in Turkish, French and European Human Rights Laws, European Journal of Migration and Law 2007/4, 419-433; D.L.
RHODE, The Injustice of Appearance, Stanford L. Rev. 2008-09, (1033) 1094; R. REBOUCH, l.c., 722-724; V.K. VOJDIK, Politics of
the Headscarf in Turkey: Masculinities, Feminism, and the construction of collective identities, Harv. J.L. & Gender 2010, (661)
670; M.H.Th.D. TEN NAPEL and F.H.K. THEISSEN,The Judicial Protection of Religious Symbols in Europes Public Educational Institutions: Thank God for Canada and South Africa, Muslim World Journal of Human Rights October 2011, 1-24;
503 For a recent example: ECHR (Grand Chamber) 3 November 2011, S.H. and others vs. Austria, where TULKENSs dissenting opinion was joined by judges HIRVEL, TRAJKOVSKA and TSOTSORIA.
504 The observation was recorded during a conference at Duke University Law School (The Washington Post, 27 mei 2009,
www.washingtonpost.com).
505 Cf. S.S. SOURYAL, and B.W. MCKAY, l.c., 55.
501
186
stitutions, HART already showed us more than half a century ago (1961) how those who
play a pivotal role and judges surely do cannot chaotically despair without threatening
societys sustainability (cf. the authors famous distinction between the internal and external points of view of law and rules).506 By somehow institutionalizing judicial dissent, thus
honouring the alternative opinions held by those who are called upon to alleviate social
tensions where the two other branches of MONTESQUIEUs Trias Politica often seem to forfeit, Belgium could, in other words, demonstrate a truly democratic attitude which unavoidably has to boil down to tolerating and even cherishing the impure.507
Literature
ADAMS, M., A government of laws, not of men? Over recht, macht en de democratische
legitimiteit van rechtsvorming door de rechter. Een toepassing in de context van trias
politica en vage normen, CDPK 1999, 173-201.
ADAMS, M., De argumentatieve en motiveringspraktijk van hoogste rechters:
rechtsvergelijkende beschouwingen, RW 2008-09, 1498-1510.
ARNOU L. et al., Strafrecht en strafprocesrecht, Mechelen, Kluwer, 2006, 653 p.
BLOMQUIST, R.F., Concurrence, Posner-Style: Ten Ways to Look at the Concurring Opinions of Richard A. Posner, Alb. L. Rev. 2008, 37-116.
BOVENDERT, P.P.T. et al., Rechterlijke organisatie, Rechters en Rechtspraak, Deventer,
Kluwer, 2008, 372 p.
BRUINSMA, F.J., The Room at the Top: Separate Opinions in the Grand Chambers of the
ECHR (1998-2006), Recht der Werkelijkheid 2007, Vol. 2, 7-24.
COSER, L.A., Masters of Sociological Thought: Ideas in Historical and Social Context, New
York, Harcourt, 1977, 611 p.
DIERICKX, G., De logica van de politiek, Antwerp/Apeldoorn, Garant, 2005, 352 p.
DWORKIN, R., A Matter of Principle, Cambridge, Harvard University Press, 1985, 425 p.
DWORKIN, R., The Judges New Role: Should Personal Convictions Count?, International
Journal of Criminal Justice 2003, 4-12.
DWORKIN, R., The Secular Papacy, in R. BADINTER, S. G. BREYER (eds.), Judges in contemporary
democracy: an international conversation, New York, NYU Press, 2004,
67-115.
FOQU, R., De rechter is het sprekende recht in F. EVERS (ed.), Kiezen tussen recht en
rechtvaardigheid, Brughes, die Keure, 2009, 79-92.
HART, H.L.A., The Concept of Law, Oxford, Clarendon, 1997 (2nd. Ed.), 328 p.
HOGE RAAD VOOR DE JUSTITIE, De Belgen en justitie in 2007. Resultaten van de tweede
justitiebarometer, Brussels, Bruylant, 2007, 76 p.
H.L.A. HART, The Concept of Law, Oxford, Clarendon, 1997 (2nd. Ed.), 328 p.
A. VANDEVELDE, Is het kapitalisme ethisch?, Streven October 2005, 805 et seq. The author concludes his contribution with the
contention that however contemporary social criticism may sprout from a desire towards purity, it must nevertheless lead to
accepting ambivalence (our translation). See also the constant feature of ECHR jurisprudence according to which pluralism,
tolerance and broadmindedness are the characteristics of a democratic society (R.C.A. WHITE and I. BOUSSIAKOU, l.c., 59).
506
507
187
HOGE RAAD VOOR DE JUSTITIE, De Belgen en justitie in 2010. Resultaten van de derde
justitiebarometer, Ghent, Story, 2010, 172 p.
KIRMAN, I., Standing apart to be a part: the precedential value of Supreme Court concurring opinions, Colum. L. Rev. 1995, 2083- 2119.
LANGFRED, C.W., Too Much of a good Thing? Negative Effects of High Trust and Individual
Autonomy in Self-Management Teams, Academy of Management Journal, 2004,
Vol. 47,
385399.
LCUYER, Y., Le secret du dlibr, les opinions spares et la transparence, Rev. trim.
dr. h. 2004, Vol. 57, 197-223.
LEGENDRE, P., Lempire de la vrit, Parijs, Fayard, 1983, 51-52; F. RIGAUX, La loi des
juges, Paris, Odile Jacob, 1997, 254 p.
LOWNEY, C., Wat leiders uit de eenentwintigste eeuw kunnen leren van Jezueten uit de
zestiende eeuw, Streven November 2011, 910-921.
MARTENS, P., Sur les loyauts dmocratiques du juge in J. VERHOEVEN (ed.), La loyaut.
Mlanges offerts Etienne Cerexhe, Brussels, 1997, 249-272.
MATRAY, C., La rforme de la discipline judiciaire, JT 2003, 821-839.
MERRILLS, J.G., The development of international law by the European Court of Human
Rights,
Manchester, Manchester university press, 1993, 265 p.
NELISSEN, B. Deontologische codes of deugden voor (te) openhartige magistraten?, RW
2011-12, 806-823.
PARIENTE-BUTTERLIN, I., Le droit, la norme et le rel, Paris, PUF, 2005, 202 p.
PARMENTIER, S., VERVAEKE, G., GOETHALS, J. et al., Justitie doorgelicht. De resultaten van
de eerste
Belgische justitiebarometer, Ghent, Academia Press, 2004, 118 p.
PATTYN, P., Loyaliteit, motivatie en erkenning, Ethische Perspectieven 2007, Vol.4, 3545.
REBOUCH, R., Substance of Substantive Equality: Gender Equality and Turkeys Headscarf Debate, Am. U. Intl L. Rev. 2009, 711-737.
REES, P.J. and ROHN, P., Dissenting Opinions: Can they Fulfill a Beneficial Role?, Arbitration International 2009, Iss. 3, 329-346.
RHODE, D.L., The Injustice of Appearance, Stanford L. Rev.2008-2009, 1033-1101.
RIGAUX, F., La loi des juges, Paris, Odile Jacob, 1997, 319 p.
SOURYAL, S.S. and MCKAY, B.W., Personal Loyalty to Superiors in Public Service, Crim.
Just. Ethics 1996, 44-62.
STORME, M., Onafhankelijkheid van de rechterlijke macht: een inleiding, in
FLEERACKERS, F. en VAN RANSBEECK, R. (eds.), Recht en onafhankelijkheid. Gerechtelijke
macht in perspectief, Brussels, De Boeck en Larcier, 2008, 19 et seq.
STORME, M.E., Pleidooi voor separate opinions in de rechtspraak, De Juristenkrant 8
April 2009, 10.
TEN NAPEL, M.H.Th.D. and THEISSEN, F.H.K., The Judicial Protection of Religious Symbols in Europes Public Educational Institutions: Thank God for Canada and South Africa,
Muslim World Journal ofHuman Rights October 2011, 1-24.
188
TRAEST, P., Enkele bedenkingen over de alleenzetelnde rechter in strafzaken in F.

DERUYCK et al (eds.), De wet voorbij. Liber amicorum Luc Huybrechts, Antwerp, Intersentia, 2010, 415-428.
ULUSOY, A., The Islamic Headscarf Problem before Secular Legal Systems: Factual and
Legal Developments in Turkish, French and European Human Rights Laws, European
Journal of
Migration and Law 2007, 419-433.
VANDEVELDE, A., Is het kapitalisme ethisch?, Streven October 2005, 804-813.
VAN DEN WYNGAERT, C., Strafrecht en strafprocesrecht in hoofdlijnen, AntwerpApeldoorn, 2009 (7th revised edition), 1340 p.
VANDERLINDEN, J., Ouverture in X., Convictions philosophiques et religieuses et droits
positifs, Brussels, Bruylant, 2010, 17-112.
VAN HOECKE, M., Law as communication, Oxford, Hart, 2002, 224 p.
VOJDIK, V.K., Politics of the Headscarf in Turkey: Masculinities, Feminism, and the construction of collective identities, Harv. J.L. & Gender 2010, 661-686.
WHITE R.C.A., and BOUSSIAKOU, I., Separate Opinions in the European Court of Human
Rights, Hum. R. L. Rev. 2009, 37-66.
189

DOI: 10.989765/2016.5.9.765
The Influence of the Post-war European Constitutions on the Constitution of the Irish Free State
Laura Cahillane*
Introduction
The writing of the Irish Free State Constitution was only made possible following the signing of the Anglo-Irish Treaty on 6 December 1921 by Irish and British representatives.508
This Treaty brought an end to centuries of revolutionary struggle in Ireland and provided
for the creation of a new Irish State, which would remain within the British Commonwealth but would have internal autonomy. Previous to this, Ireland had been part of the
United Kingdom, a position violently resisted by the Irish. Following the seeming failure of
an effort to secure Home Rule for Ireland,509 a revolutionary group within the State initiated a Rising,510 which eventually led to a War of Independence which lasted from 1919 until
the signing of the Treaty. However, the Treaty agreement was a controversial one and was
* Laura Cahillane is a Post Doctoral Fellow in the Law Department in University College Cork, Ireland.
508 For an account of the circumstances surrounding the signing of the Treaty and the discussions which led to that point, see F
Pakenham Peace by Ordeal: An Account from first-hand sources of the Negotiation and Signature of the Anglo-Irish Treaty 1921 (3rd
edn Geoffrey Chapman London 1962).
509 The First Home Rule Bill, introduced by Gladstone, was defeated in the British House of Commons. The second Bill was passed
in the Commons but defeated in the House of Lords. With the Parliament Act of 1911, the Lords unlimited veto was reduced to
two years and finally the Irish had some hope of getting a new Home Rule Bill. In 1912, the third Home Rule Bill was introduced.
Although vetoed by the House of Lords that year and the next, in 1914, the Government used the provisions of the Parliament Act
1911 to override the Lords and send it for Royal Assent. However, with the outbreak of war with Germany, the British Prime
Minister, Asquith passed the Suspensory Act 1914, which ensured that Home Rule would be postponed for the duration of the
conflict and would not come into operation until the end of the War. However, by the time the War had finished, the Irish people
were no longer satisfied with Home Rule; they now wanted independence.
510 The 1916 Easter Rising. This was a small and unsuccessful Rising organised by the Irish Republican Brotherhood. It was an
event which had little support and inspired little sympathy or respect, until the brutal actions of the British gave it a retrospective
grandeur: leaders were shot following trials by field general court martial, in clandestine circumstances, and buried in a mass
grave at Arbour Hill. For more, see A Hardiman Shot in Cold Blood: Military Law and Irish Perceptions in the Suppression of the
1916 Rebellion. In G Doherty & D Keogh (eds) 1916 The Long Revolution (Mercier Press Cork 2007) at p 225.
190
not universally accepted in Ireland. Many of those who had fought in the War of Independence believed that a free Irish Republic could have been achieved and so they were unwilling to accept anything less than that position. In particular, they refused to take an Oath to
the British King, something which had been specified in the Treaty.
The Treaty agreement eventually led to a split amongst Irish Nationalists and those who
disapproved of the agreement refused to recognize the authority of the new Irish State
which had been created. However, the Treaty was approved by a majority of Dil ireann511
and those who were prepared to accept its terms then undertook the task of creating the
Irish Free State and writing its first constitution.
It is a common misconception that that the Irish Free State Constitution was simply a British creation or that only the British and Dominion models were taken into account during
the drafting stages. However, this could not be further from the truth. Following the signing of the Anglo-Irish Treaty, a Constitution Committee was established and charged with
the immeasurable task of constructing, for the new State, a suitable constitution which
would be based on the Treaty. This was certainly not an easy mission, as one of the main
concerns was to draw up a document which would appease not only the Provisional Government and the British but also the Unionists and the doctrinaire Republicans. A unanimous point of agreement among Committee members was the desire to avoid the incorporation of the British Constitution into the Irish document. Thus, the Committee commenced an intense study of foreign constitutions. Among the documents studied, those
which were to have perhaps the greatest influence on the Irish Constitution were the constitutions of the post-War European States.
The aim of this paper is to examine the reasons why the post-War constitutions were so
attractive to the Irish Constitution Committee and to consider a brief selection of areas
where those constitutions influenced the Irish Free State Constitution. In order to provide
some context it will first be necessary to give a brief explanation of the manner in which
the Irish Free State Constitution was drafted.
The Drafting of the Irish Free State Constitution
Michael Collins512 and Arthur Griffith513 invited seven men514 to the first meeting of the
Constitution Committee on 24 January 1922 in the Mansion House; Darrell Figgis,515 Hugh
The Irish Parliament. Those members who did not approve of the Treaty walked out of the Parliament and refused to take
their seats. Some of the more radical of those opposed to the Treaty later initiated a Civil War which lasted for a number of
months during 1922.
512 Head of the Provisional Government.
513 President of the Dil.
514 The exact basis on which members of the Committee were chosen is unclear. It appears Thomas Johnson of the Labour party
was asked but did not accept a position on the Committee. See Letter from Figgis to Collins 9 March 1922, NAI Department of the
Taoiseach S8952.Various other people were proposed; Griffith suggested Michael Francis Doyle, an American lawyer who was
unable to attend (University College Dublin Archives, Hugh Kennedy Papers, P4/ 317). Figgis suggested Ernest Henry Alton of
Trinity College Dublin but subsequently withdrew that recommendation but also proposed Lord Justice James OConnor. See NAI
511
191
Kennedy,516 James Douglas,517 CJ France,518 James McNeill,519 James Murnaghan520 and

John OByrne.521 Alfred ORahilly522 and Kevin OShiel523 later joined the Committee. There
were also three civil servants appointed as secretaries; EM Stephens524 was the principal
secretary and he was joined by RJP Mortished525 and PA OToole.526 Collins outlined what
he wanted from the drafting Committee at the original meeting. In particular he specified
that he wanted a true democratic constitution.527 Kennedy has written in relation to the
Committee that:
The Committee was happily free from any obligation to accept existing British or
Dominion models, and could, on the one hand, respond to the guidance of Irish
history and existing Irish conditions and, on the other hand, borrow of the
experience of the constituted democracies of the world ...528
Naturally, the constitutional experience of the members was limited. The system with
which they were most familiar was of course that of the British. However, they were all in
agreement that much of this system would be unsuitable as a model for the new Irish
system. Leo Kohn has written that theoretical inclination and republican outlook alike led
the framers of the Irish Constitution to seek inspiration from Continental models, however
experimental, rather than from the empirical framework of the British Constitution.529
At the beginning of its sessions, the Committee sought and received a number of
constitutions from around the world together with historical introductions on each. These
Department of the Taoiseach s8952. It seems members of the clergy were also approached but none were inclined to join the
Committee. See NAI Cabinet minutes PG1, 17 and 28 January 1922.
515 Author, journalist and member of the Irish Volunteers.
516 Lawyer and legal advisor to the Provisional Government. He was later the first Attorney General and Chief Justice of the Irish
Free State.
517 Quaker businessman and prominent member of the Irish White Cross, which was a civilian relief organisation.
518 American lawyer also involved in the Irish White Cross.
519 Former member of the British Civil Service and brother of the revolutionary Eoin MacNeill.
520 Professor of Jurisprudence, Roman law, and International law in University College Dublin. He was appointed to the Supreme
Court in 1925.
521 He worked in the Civil Service in London and in the Irish Land Commission. He was later Attorney General and subsequently a
Supreme Court Justice.
522 Professor of Mathematical Physics in University College Cork. By his writings he became a sort of spin doctor for Sinn Fin. He
became Registrar of the UCC in 1920, and held the post until 1943 when he became President of the University. O'Rahilly also
founded the Cork University Press in 1931.
523 Land commissioner and member of the Irish Volunteers. He was also assistant legal advisor to the Provisional Government.
524 He later became secretary to the Boundary Commission.
525 Later he was Irish representative at the International Labour Office at Geneva.
526 He was requested by the Committee during a meeting on 30 January. He worked for the Record Office.
527 See JA Gaughan (ed) Memoirs of Senator James G. Douglas (1887-1954), concerned citizen (Dublin University College Dublin
Press 1998) at pp 163-164. His instructions were as follows: You are not to be bound up by legal formalities but to put up a
constitution of a Free State and then bring it to the Provisional Government who will fight for the carrying of it through. It is a
question of status and we want definitely to define and produce a true democratic constitution. You are to bear in mind not the
legalities of the past but the practicalities of the future.Subsequently in correspondence to Douglas, Collins also specified that he
wanted: [A] constitution that would be short, simple, easy to alter as the final stages of complete freedom were achieved and
only contain what was necessary to establish constitutional machinery to govern Ireland. It should omit everything already
covered in the treaty and should rest solely upon authority derived from the Irish people. Collins also stated that one thing he
wished to say was that Articles 3, 4 and 6527 of the Treaty could be left out of the Constitution altogether and he made it clear
that a bi-cameral legislature would be necessary in order to please the Southern Unionists.
528 Kennedy in the foreword to Kohn The Constitution of the Irish Free State (George Allen & Unwin Ltd London 1932) at p xi.
529 Ibid at p 78.
192
were to prove quite useful to the Committee in drafting various parts of the Constitution
and the documents were also made available to members of the Constituent Assembly for
comparison purposes during the debates on the Constitution.530 The collection included
many constitutions531 including those of the Dominions (Canada, South Africa, Australia),
the older constitutions such as the Swiss, French and American Constitutions, the postWar constitutions of Poland, the Baltic States, Germany, Austria, Czechoslovakia and Estonia as well as a mix of other countries such as Mexico, Norway, Sweden and Denmark.
The Committee was particularly impressed with the enthusiasm for democratic ideals and
popular sovereignty which permeated the post-War constitutions. In particular, the German (Weimar) Constitution of 1919 was frequently referred to during Committee discussions. That the post-War constitutions had an influence on the drafters is obvious from a
quick over-view of the main themes contained in those documents and while constitutions
from other countries, such as the Dominions, Switzerland and the United States, may have
been useful, it is from the post-War constitutions that the Committee took much of its inspiration.
But what made the post-War constitutions so attractive to the Irish Committee? In order to
answer that question, it will be necessary to take a closer look at those documents.
The Influence of the Post-War Constitutions in General
Agnes Headlam-Morley has written of the post-War constitutions:
The interest of the new Constitutions lies in the fact that an attempt has been made to give
to the democratic principle its most complete and logical expression. Sovereignty rests
with the people; the people are not only to control the Government, they are to be the direct holders of political power. Parliament is elected by the widest possible system of universal suffrage and by proportional representation. Nevertheless, the people do not surrender their authority to Parliament. The Representative Assembly is controlled by direct
legislation or by a President who has considerable constitutional powers and is himself the
direct representative of the sovereign people.532
Thus popular sovereignty was a major theme of those constitutions. The conception of
popular sovereignty which underlay the post-War constitutions was based on Rousseaus
These documents were later made into a book: Select Constitutions of the World (Dublin Stationery Office 1922).
included in the book which was later made (see above) are as follows: The Kingdom of the Serbs, Croats and Slovenes, The Polish Republic, The Republic of Austria, The Estonian Republic, The Czechoslovak Republic, The German Reich, The
Russian Socialist Federal Soviet Republic, The United States of Mexico, The Kingdom of Denmark, The Union of South Africa, The
Commonwealth of Australia, The French Republic, The Swiss Confederation, the Dominion of Canada, The Kingdom of Belgium,
The Kingdom of Norway, The Kingdom of Sweden and The United States of America. In the files of the Constitution Committee,
there are also documents on Bohemia, Italy and Holland.
532 A Headlam-Morley The New Democratic Constitutions of Europe; A Comparative Study of Post-War European Constitutions with
Special Reference to Germany, Czechoslovakia, Poland, Finland, The Kingdom of the Serbs, Croats & Slovenes and the Baltic States
(Oxford University Press 1928) at p 2.
530
531Countries
193
claim533 that sovereignty cannot be delegated; rather, it remains with the whole body of
citizens, and for that reason, Parliament cannot be sovereign it is only one of the organs
which can be established. This idea was perfect for what the drafters wanted for the Irish
Free State Constitution and it fitted in nicely with the perpetual claim (made by various
figures such as James Fintan Lalor, Theobald Wolfe Tone, Thomas Davis, John Mitchel
and Pdraig Pearse) that the Irish people had always remained sovereign just as Ireland
had always remained a nation. Most of the associated devices found in the post-War constitutions are also found in the Irish Free State Constitution; popular sovereignty, universal suffrage, proportional representation, Referendum and Initiative and second chambers.
Of course there were also other reasons and influences behind the introduction of such devices but it would have been a comfort to the drafters to know that these devices had recently been introduced in Europe with much enthusiasm. This would certainly have been a
mark in favour of their inclusion.
Popular Sovereignty
Popular sovereignty was arguably the main feature and the central theme of the Irish Free
State Constitution. It was introduced in Article 2 which provided that: that all powers of
government and all authority legislative, executive and judicial in Ireland are derived from
the people of Ireland. This constituted a significant departure from the British and Dominion conception of the sovereignty of the Crown in Parliament. The inclusion of the doctrine of popular sovereignty was essential in order to gain the trust of the Irish people for
the new system, particularly one which had not yet freed itself completely from the shackles of the Crown. Crown, Parliament and politics were traditionally regarded with suspicion in Ireland. However, if the people were to hold the power in their own hands then
perhaps the evils of the previous system could be avoided. It was one way of ensuring an
autochthonous534 constitution. The declaration of popular sovereignty was also seen by the
people as a Republican aspect of the Constitution; a sign that the Irish Free State was not
going to be controlled by the Crown. No doubt many felt comforted by that fact that their
rights would be protected in a system in which it was the people who were declared to be
sovereign.
The sources of inspiration for this particular provision are diverse and include the writings
of the old Irish patriots, the Gaelic State, older Irish constitutional documents such as the
1916 proclamation and the 1919 democratic programme but also the post-War constitutions. The ideal of popular sovereignty was a principal feature of the post-War constitutions; every one of those constitutions begins with a preamble stating that the people of the
country concerned have given themselves a constitution. And then all of them except Yugoslavia on to state that the people are sovereign and that all powers of government emanate
533
534
Ibid at p 32.
Meaning indigenous rather than descended from migrants or colonists.
194
from them.535 So popular sovereignty essentially constituted the basis of all of the post-War
constitutions and the Irish Free State Constitution followed this trend. Many of the other
devices and themes contained in the Irish Free State Constitution are all related to this
general theme. We will now consider a few of those related themes, the first of which is direct democracy.
Direct Democracy
The Irish Free State Constitution contained two important devices to secure a measure of
direct democracy for the Irish people: the Referendum in Article 47 and the Initiative in
Article 48. (The Referendum will be concentrated upon here as it was the more prevalent
provision in the European constitutions.) The Referendum was an important feature of the
Irish Free State Constitution, particularly so because it was not introduced solely as the
means for effecting constitutional amendments. In addition to the constitutional amendment provision, Article 47 introduced the device of Referendum for ordinary legislation,
which was in effect, a veto on legislation. So not only was there a requirement that the people decide on a change to the Constitution but also if certain legislation which had passed
through the Oireachtas was not agreeable to the people, then before the measure would be
signed into law, the people could bring a petition demanding a referendum on the issue.
Article 47 specifically provided the following:
Any Bill passed or deemed to have been passed by both Houses may be suspended
for a period of ninety days on the written demand of two-fifths of the members of
Dil ireann or of a majority of the members of Seanad ireann presented to the
President of the Executive Council not later than seven days from the day on which
such a Bill shall have been so passed or deemed to have been so passed. Such a Bill
shall in accordance with regulations to be made by the Oireachtas be submitted by
Referendum to the decision of the people if demanded before the expiration of the
ninety days either by a resolution of Seanad ireann, or by a petition signed by not
less than one-twentieth of the voters then on the register of voters, and the decision
of the people by a majority of the votes recorded on such Referendum shall be conclusive. These provisions hall not apply to Money Bills or to such Bills as shall be declared by both Houses to be necessary for the immediate preservation of the public
peace, health or safety.
Basically, seven days had to elapse between the passing and signing into law of a Bill to allow for the possibility of a referendum. During the seven days, two fifths of the Dil or a
majority of the Seanad could suspend the Bill for ninety days. Then, either by a resolution
of the Seanad or by a petition of one twentieth of registered voters, a referendum could be
demanded. Essentially, it gave to the people, the right to accept or refuse proposed laws
535
Headlam-Morley (n 25) at pp 89-90.
195
(except Money Bills and those declared necessary for public peace and safety) and it rests
on the idea of the people as the ultimate source of authority in the State.
It can be disputed as to whether the original inspiration for the provisions on direct democracy in the Irish Free State Constitution came from the Swiss Constitution or the postWar Constitutions. Undoubtedly, both had an influence but the similarity of the Irish provisions to some of the post-War provisions is obvious. The Reich (Weimar) Constitution of
1919 contained specific provisions providing for the Referendum. Article 73 of that Constitution stated:
A law passed by the Reichstag shall, before its promulgation, be submitted to the decision of the people, if the President of the Reich so decides within one month.
A law the promulgation of which is deferred on the motion of at least one-third of the
Reichstag, shall be submitted to the decision of the people, if desired by onetwentieth of those entitled to the franchise.536
The similarities between this and the Irish provisions are evident. In addition, under Article 74 of the Reich Constitution, the President could call a plebiscite537 because of a disagreement on a law between the two Houses of Parliament. Article 75 stated that a decision
of the Reichstag could be annulled by the decision of the people if a majority of voters take
part.
Constitutional amendments, although permitted by ordinary legislation, could be made the
subject of a referendum by Initiative of the people, according to Article 76. Article 43 of the
Austrian Constitution of 1920538 stated:
If the National Council so resolves or if the majority of members of the National
Council so demands, every enactment of the National Council shall be submitted to a
referendum upon conclusion of the procedure pursuant to Art. 42 above but before
its authentication by the Federal President.
Article 44 stated that any total revision of the Constitution would also be submitted to Referendum.
A Referendum for ordinary legislation was also included in the Czechoslovak Constitution
of 1920; Article 46 provided: Should the National Assembly reject a Government Bill the
Cabinet may resort to a Referendum to decide whether the rejected Government Bill shall
become law ... However, here the right to resort to a Referendum lay in the hands of the
Cabinet only.
Article 73 of the Constitution of the German Reich, taken from Select Constitutions of the World (Stationery Office Dublin 1922).
The Third paragraph of this article also introduced the Initiative.
537 It appears there is no real significance in the difference between the words referendum and plebiscite.
538 The Bundes-Verfassungsgesetz (B-VG) available at http://www.ris.bka.gv.at/Dokumente/Erv/ERV_1930_1/ERV_1930_1.pdf
536
196
Nicholas Mansergh, writing in the 1930s, noted that: In modern Europe direct legislation
is regarded as the necessary postulate of democracy: it is almost universally accepted as a
logical corollary to the theory of popular sovereignty. It is by the means of such machinery
that the final expression of the peoples will, of the volont gnrale, can be ascertained.539 Undoubtedly, the idea of ensuring popular sovereignty was utmost in the minds
of The Irish Committee members but as Mansergh also notes, the device of the Referendum had another function; that of acting as a safeguard for individual rights.540 This would
also have been quite significant in a country which had seen little or no vindication of individual fundamental rights for centuries.
Functional Representation
Another common theme is that of Functional Representation. The idea of introducing
Functional Councils was provided for in the Irish Free State Constitution in Article 45,
which states:
The Oireachtas may provide for the establishment of Functional or Vocational Councils
representing branches of the social and economic life of the Nation. A law establishing any
such Council shall determine its powers, rights and duties, and its relation to the government of the Irish Free State (Saorstt ireann).
The idea was to bring politics closer to the people by having ordinary people involved in
politics. It was envisaged that councils based on trades, employment and other aspects of
life could be established and gradually become directly involved in the political process.
The idea had a dual-inspiration; it seems to have been inspired by ancient Ireland, where
these sorts of Councils played a major role in governance and also by the post-War constitutions. It appears that there were two possible visions for the idea of functional representation in the Free State Constitution; one involving the executive and the other involving
the legislature. The first, involving the executive was the scheme which was actually chosen
in 1922 and the second scheme involving the legislature was eventually incorporated into
the 1937 Constitution in Article 15.3.
Professor Joe Lee has acknowledged the influence of Article 165 of the Weimar Constitution in relation to functional representation in the Irish Constitution.541 The relevant parts
of Article 165 provide the following:
N Mansergh The Irish Free State: its government and politics (Allen & Unwin London 1934) at p 137.
Ibid at p 138.
541 J Lee Aspects of Corporatist Thought in Ireland: The Commission on Vocational Organisation, 1939-43 in Cosgrave &
McCarthy (eds) Studies in Irish History (Dublin University College 1979) at p 324.
539
540
197
For the protection of their social and economic interests, workers and salaried employees shall have legal representation in Workers Councils for individual undertakings and in District Workers Councils grouped according to economic districts and
in a Workers Council of the Reich.
The District Workers Council and the Workers Council of the Reich shall combine
with representatives of the employers and other classes of the population concerned
so as to form the District Economic Councils and an Economic Council of the Reich,
for the discharge of their joint economic functions and for co-operation in the carrying-out of laws relating to socialization. The District Economic Councils and the Economic Council of the Reich shall be so constituted as to give representation thereon
to all important vocational groups in proportion to their economic and social importance.
All Bills of fundamental importance dealing with matters of social and economic legislation shall, before being introduced, be submitted by the Government of the Reich
to the Economic Council of the Reich for its opinion thereon. The Economic Council
of the Reich shall have the right itself to propose such legislation.542
Basically, the idea was that vocational councils would be established and out of them would
be created the Economic Council of the Reich which would be so constituted as to give representation to all important vocational groups in proportion to their economic and social
importance. Then, all Bills of fundamental importance dealing with matters of social and
economic legislation would, before being introduced, be submitted to the Economic Council of the Reich for its opinion thereon and the Economic Council of the Reich would have
the right itself to propose such legislation.
A further source of inspiration for this provision may have been Article 68 of the Polish
Constitution of 1921. That provision states:
In addition to territorial autonomy, a special law shall provide for autonomy in the
various branches of economic life by the establishment of councils representing agriculture, commerce, industry, skilled labour, salaried employment, etc., which shall
form together the Supreme Economic Council of the Republic. The co-operation of
the Supreme Economic Council with the State in common control of economic affairs
and in legislation shall be determined by law.543
542Select
543
Constitutions of the World (Stationery Office Dublin 1922) at pp 238-239.

See ibid at p 95.
198
It seems that in March 1922, Figgis brought this provision to the attention of Collins in order to demonstrate his idea in relation to functional/vocational representation.544
There are further related themes which could be discussed in relation to this topic. 545 However, the final two themes chosen are slightly different and thus were chosen for that reason.
Judicial Review
Many people may be unaware of it but the 1922 Constitution contained a judicial review
provision in Article 64, which gave that jurisdiction to the High Court. It has been described as the most arresting provision of the Irish Free State Constitution546 because of
the fact that judicial review was not widely recognised at the time. While undoubtedly the
United States would have been a major source of inspiration for the introduction of judicial
review in 1922, the fact that a few of the post-War constitutions had recently introduced it
would have been very persuasive. The German (Weimar) Constitution of 1919 allowed for
judicial review in a very narrow realm. Article 13 s 2 provided that the Reichsgericht547 was
empowered to review the validity of state statutes which were alleged to be in conflict with
the federal law.548 However on the question of whether the courts could adjudicate on the
constitutionality of federal statues, the Constitution remained silent. This meant that judicial review in the broad sense was neither prohibited nor sanctioned.549 However, in 1925 it
was decided that the Reichsgericht did in fact have that jurisdiction.550 In the Austrian
Constitution of 1920, judicial review was specifically provided for and a constitutional
court (Verfassungsgerichtshof) 551 was established to exercise this function.552 Although
not included in its Constitution, a constitutional court was also established in Czechoslovakia by statute on 9 March 1920 on the authority of an earlier statute (29 February 1920),
University College Dublin Archives, Hugh Kennedy Papers, P4/309.

Such as the issue of State-intervention, equality, religious provisions etc.
546 Professor Felix Frankfurter from Harvard University in a letter to Lionel Curtis. According to Gerard Hogan, Frankfurter was
enquiring as to whether this article was based on the American experience of judicial review and also whether this was insisted
upon by the Irish or the British. Curtis apparently passed the letter on to Kennedy but tantalisingly, due to the difficulties which
the State was experiencing at the time, the letter apparently went unanswered. See G Hogan Development of Judicial Review of
Legislation and Irish Constitutional Law 1929-1941 Trinity Thesis 6150 (2001) at p 1, citing a letter written on 10 th August 1922
to Lionel Curtis.
547 Federal Supreme Court.
548 See Select Constitutions of the World (n 35).
549 The debate as to constitutional review raged on into the mid 1920s. However, in 1925 the Reichsgericht decided that it did
have authority to question federal statutes (111 RGZ 320 (1925)) and in 1929 it declared a statute unconstitutional (124 RGZ 173
(1929)). For more on judicial review under the Weimar Constitution, see G Casper Guardians of the Constitution (1979-80) 53 S
Cal L Rev 773; Heinrich Nagel Judicial Review in Germany (1954) 3(2) American Journal of Comparative Law 233; B J Hartman
The Arrival of Judicial Review in Germany under the Weimar Constitution of 1919 (2003-2004) 18 BYU J Pub L 107, and M
Stolleis Judicial Review, Administrative Review, and Constitutional Review in the Weimar Republic (2003) 16 (2) Ratio Juris
266.
550 Ibid.
551 Arts. 137-148; and law of April 4, 1930, Bundesgesetzblatt, No. 112.
552 For more see J A C Grant Judicial Review of Legislation under the Austrian Constitution of 1920 (1934) 28 (4) American
Political Science Review 670.
544
545
199
which governed the introduction of the Constitution.553 The idea of judicial review was
widely debated at the time but it was only beginning to be adopted in Europe. 554 The next
country to adopt the doctrine was the Irish Free State. Surprising an addition as it may
have been, the precedent had already been established in Europe.
Private Property
The final theme which has been included here is the right to private property. While one
might argue that this comparison does not stand up as the post-War constitutions included
this right while the Irish Free State did not, it is submitted that the manner in which this
right was granted in the post-War constitutions is significant. While many of the constitutions of the post-War states contain private property guarantees, many of these are also
subject to significant exceptions; the constitution of the Kingdom of the Serbs, Croats and
Slovenes555 guarantees a right to private property in Article 37 but only if it is not injurious
to the interests of the community and the scope, extent and limits to that right are regulated by law. Article 24 of the Estonian constitution556 guarantees private property but then
specifies that this may be expropriated without the consent of the owner if public interest
so requires. In the German (Weimar) constitution, Article 158 states that while property is
guaranteed, this also imposes obligations and its use must at the same time serve the
common good. The majority of the post-War constitutions also contain provisions which
claim all resources, forests, mineral wealth, water etc for the state.557 This type of provision
was included in Article 12 of the Irish Free State Constitution.
Conclusion
As indicated at the beginning of this article, the Constitution Committee in 1922 had a very
difficult job of trying to create a constitution which would be acceptable to all sides and
which would adequately represent the new Irish State. Essentially, they had to decide what
the new Irish State would be. Irish patriots had been writing for years about freeing Ireland
from Britain but there was very little scholarship on what should actually happen once independence was obtained. The writings which did exist on this subject were very idealistic
and philosophical. However, certain principles could be drawn from those writings and the
central theme was in relation to the importance of the people in the political and legal system; the idea of bringing politics closer to the people so that the people would trust in the
State. This is essentially why the post-War constitutions were such suitable models for the
See S L Paulson Constitutional Review in the United States and Austria:Notes on the Beginnings (2003) 16(2) Ratio Juris 223
who also recommends the following; F Weyr Der Tschechoslowakische Staat (1922) 11 Jahrbuch des ffentlichen Rechts der
Gegenwart 351.
554 See D Deener Judicial Review in Modern Constitutional Systems (1952) 46 (4) The American Political Science Review 1079
at 1085.
555 Adopted in 1921.
556 Adopted in 1920.
557 See generally Select Constitutions of the World (n 35).
553
200
Irish Constitution Committee they represented, in a practical and real way, what the
Irish patriots had always wished for the Irish State. Because of this, the Committee could
happily draw on Irish history and modern developments in Europe at the same time in order to create the new Irish order because the same ideals were represented by both.
201

DOI: 10.989765/2016.5.9.980
Constitutional Fidelity Throughout Time. A Comparative Survey

Anna Silvia Bruno*
Introduction
The pivot of this article is the theme of constitutional fidelity, a concept which requires
the analysis of the Constitution as a written text granting stability and being subject to interpretations and revisions throughout time; to the judges and judicial instruments used in
the dialogue between facts and norms. The article takes into account different viewpoints:
that of society, that of the Constitution and finally that of judges. These elements should be
in constant dialogue and within this dialogue time arises as a product of society, as a social
conception and construction, because it depends both on those tools by which it is implemented for mere pragmatic purposes and on how it is perceived by the individual. The
temporal dimension of the Constitution may clash with that of society and, consequently,
with the temporal dimension of rules and institutions: this split occurs because people are
always moving on, they progress and develop, adapting but preserving their historical
identity. In this sense, individual and social time mutually interact in a present time which
becomes the scenario in which the past lives again through memory and the future is put
forward as a possibility. An important feature of the Constitution is the way it adapts in
accordance with practical requirements. But how are constitutional moments, periods of
transition, constitutional revisions constitutionally faithful throughout time? The ideal dialogue is between its unchanging elements and the structure which allows it to function,
202
that is, its practical application according to the specific moment in time. In this way, the
Constitution is both objective and subjective at the same time.
The article analyses the North American and the Italian contexts with the awareness that
the topic of constitutional fidelity in the United States refers to a debate which cannot be
easily set in its proper frame by a European point of view because of the particular characteristics of that philosophical-constitutional context. In fact, it is marked by research
themes completely different from those of the continental scholarship, such as the Critical
Legal Studies, the economic analysis of law, the race theories, and so on. In the Italian constitutional dictionary, the word fidelity is linked to the concepts of duty and observance, and it developed several hermeneutic solutions for constitutional rules or is
supported by ethical reflections on the (historically scanty) Italian public spirit. In the
United States constitutional fidelity is something else, as J.M. Balkin and W.M. Treanor
testify:
Fidelity is not simply a matter of correspondence between an idea and a text, or a set of
correct procedures for interpretation. It is not simply a matter of proper translation or
proper synthesis or even proper political philosophy. Fidelity is not a relationship between
a thing and an interpretation of that thing. Fidelity is not about texts; it is about selves. Fidelity is an orientation of a self towards something else, a relationship which is mediated
through and often disguised by talk of texts, translations, correspondences and political
philosophy. Fidelity is an attitude that we have towards something we attempt to understand; it is a discipline of self that is related to the discipline of a larger set of selves in a
society. Fidelity is ontological and existential; it shapes us, affects us, has power over us,
ennobles us, enslaves us. As such, fidelity is an equivocal concept, full of both good and
bad, mixed inextricably together. Fidelity is the home of commitment, sacrifice, selfidentification and patriotism, as well as the home of legitimation, servitude, self-deception
and idolatry.558
The Constitution that deserves our fidelity is the Constitution that reflects our hopes, our
lives, our struggles, our commitments. And when we are faithful to that Constitution, what
we are faithful to, ultimately, is ourselves.559
The concept of constitutional fidelity can be understood within a psychological relationship between self and text as demanded by Balkin. And in this sense it is possible to
bring to mind the contributions of sociological theory of N. Elias, which focuses on the
* Postdoc research grant, University of Salento (Italy);Fellowship at the Research Council of Norway (University of Oslo, International grant 2010-2011). A previous version of this article (Constitutional Dialogue: Fundamental Core and Cultural Changes)
was submitted at the VIIth World Congress of the International Association of Constitutional Law which took place in Athens
(2007). See, www.enelsyn.gr.
558 Jack M. Balkin, Agreements With Hell and Other Objects of Our Faith, in 65 Fordham L. Rev. 1726 (1997).
559 William M. Treanor, Learning From Lincoln, in 65 Fordham L. Rev. 1786 (1997).
203
slow process of consolidation of the link (even a psychological one) between subject, institutions and rules.560
The reconstruction of the course of constitutional fidelity in a historical perspective allows an attempt at synthesis of constitutional periods according to a process of transformation determined by interpretative changes heedless of whether these have been assimilated in the constitutional text. In the quest for fidelity, what is the appropriate use of history and of political theory? Does fidelity to principles embodied in the Constitution require us to disregard or criticize certain aspects of our history? For example, on the one
hand, we could talk about constitutional infidelity when there are no juridical checks on
the political sphere (the sphere of Right), or when there are forms of constitutional fraud
through political dynamics (e.g., the Italian referendum in 25-26 June 2007). On the other
hand, considering the North-American debate on constitutional fidelity, we can emphasize the original understanding (this is the position taken by R. Bork): keeping faith with
the Founders vision (e.g., J. Rakove). Finally, the Constitution as a historical subject belongs to a moment in history, because only in this moment of history can its characteristics
be explained, allowing it to remain unchanged and guaranteeing stability; at the same
time, the Constitution needs to be a dynamically evolving framework for its people both to
remain faithful to it and correct errors coming from the past.
1.
ples
The Constitutional Text: Between Constitutional Practice and Princi-
To rethink the Constitution not as a given fact, but rather as an act which continually renews itself certainly means that it is impossible to disregard temporality. No longer is the
Constitution like a given reality in time but it is as if it coincides with time itself. In this
sense, it is possible to speak of a constitutional subject within an automatic hermeneutic
circle the time of the Constitution and the Constitution in time in which the judges,
in giving meaning to cases which occur in the social context, are an active part. 561 The
question of constitutional fidelity is clear if we consider the Constitution as text and context at the same time, a space within which gaps need to be filled by means of revision
which responds to a recognized and common code. In fact, the Constitution as a written
text and society determined by cultural pluralism are the main players in the problematic
relationship wherein a judge feels the necessity to open up the constitutional text to the
context in periods of crisis in the community. In opening itself to the social context, the
Constitution is inevitably subject to time, and its written text guarantees stability and certainty on one hand, but exposes it to various interpretations on the other hand. In the temporal dimension, the Constitution is destined to change, at times leaving the text intact
from which certain concepts can be interpreted in different ways; at other times, intervenNorbert Elias, Teoria dei simboli (1991), Italian transl., (il Mulino, 1998); La societ degli individui (1987), Italian transl. (il
Mulino, 1990); Che cos' la sociologia? (1986), Italian transl. (Rosenberg & Sellier, 1990); Saggio sul tempo (1984), Italian transl.
(il Mulino, 1986); Coinvolgimento e distacco: saggi di sociologia della conoscenza (1983), Italian transl. (il Mulino, 1988).
561 See Michel Rosenfeld, Just Interpretations: Law Between Ethics and Politics (University of California Press, 1998); The identity
of the Constitutional Subject. Selfhood, Citizenship, Culture, and Community (Routledge, 2009).
560
204
ing and revising it with respect to formal procedure while the fundamental core remains
unchanged in time. Sometimes its content is modified in order to satisfy the interests of a
political class or a social group. In all these ways, political power is the determining force
both in terms of strength and party strategy, and in terms of pouvoir constituant with
regard to a Constitution which is fighting to assert and protect its identity.
Throughout time the idea of constitutional fidelity can refer to the original meaning of
the constitutional text or to its fundamental core or, again, to the formal procedure to revise the constitutional document. Furthermore, the scenario is complicated by the relationship between the individual and society, which has never been static because it is built
around and through two protagonists which are neither isolated nor immobile. In order to
interact with society an individual has to look out on the world and open himself to it. The
world welcomes him and shows itself to have a wealth of definitions, a whole system of attitudes, an ever active patrimony of ways of operating.562 Consequently, the individual is
conditioned by his being in the world, in his being a product of his own particular time
which becomes entwined with the time of the society in which he is operating. The arduous virtue of fidelity comes from the search for harmony between the time of the Constitution and that of society in consideration of the fact that the judges, interpreting the Constitution, intervene as intermediaries in a dialogue which needs to be open in order to be
democratic. The interpretation of the Constitution as a public process becomes the main
vehicle of innovation of the constitution.563 The aims which a society intends to pursue become an integral part of a continuous flow of events of which that continuum of deeds
done by the individual becomes a part. This is the origin of social and juridical pluralism,
by which ever new instances and events refer back to constitutionally safeguarded values
which are waiting to be realized, while the certainty of the law is continually undermined,
never completely made concrete. Although the law is expected to guarantee juridical safety
it cannot in the long run avoid, as it evolves, creating something new bringing a social
harmony founded on a balance between stability and change. A continual evolution and
controlled transformation can be envisaged where the function of the law is not decided
exclusively by an analysis of the equilibrium of the system but instead takes into account
upheavals, irregularities and states of transition which can undermine the idea of fidelity to
the original meaning of the Constitution. In the perspective of being constitutionally faithful, it could be said that it is a time of metamorphosis,564 founded on the gradual change
of a system whose identity remains unaltered.
The Constitution observes society and perceives its pluralistic structure, its multiculturalism, and the pursuit of new ways for different cultures to live side by side. Social pluralism,
characterized by the emergence of new groups and movements and by cooperation and
dissent, is the symptom of a moment in history which is no longer that of a monadic, isolated society, but a time of historical importance, both nationally and internationally. On a
legal basis, opening up the Constitution to the social context creates problems related to
Giuseppe Capograssi, Analisi dellesperienza comune (Giuffr, 1975).
Jrg Luther, La Scienza hberliana delle costituzioni, in Analisi e diritto 105 (2001).
564 Franois Ost, Le temps du droit, (O. Jacob, 1999).
562
563
205
the interpretation of the Constitution, constitutional revision and constitutional moments,565 which offer multiple elements such as conservation, innovation and cultural
pluralism.
The relationship between interpretation and constitutional rules can only be considered in
fieri, since it is part of a constant flow of events, such that one can only consider it a product of the temporal dimension of a particular society. Temporal dimensions co-exist in a
present time with the prejudices and values that belong to the history of a people, and
which have determined the identity of that people. These values and principles, taken from
the past and interpreted in new ways, allow the creation of historical continuity aimed towards the future.
The values present in Constitutions and in Universal Declarations, represented by fundamental principles, need to be constantly opened up to the cultural context in which they
are present. When seeking the most suitable rule to solve a case, a judge must consider
both the social environment and the possibility that legislative reforms may take place,
considering the possible reconstruction of the interpretation. These operations are evident
in cases which are considered new compared to traditional cases, and which are confirmed
as new through an analysis of the meaning and values they refer to. The study of a single
case must be in the context of the time and society which has produced it, that is, the elements that can indicate a case as being critical or hard.566 By observing the changing
circumstances, judicial ruling becomes the subject of interpretation suitable for the transformation of the rules as a whole. The Constitution needs to be aware of social change, new
conflicts, the continuing need for new solutions and interpretations, and institutional requirements for abstract and general rules in order to achieve certainty in the law and for
the law. On the other hand, the Constitution needs to evaluate the real possibilities for resolving controversy and preserving its fundamental values.
The fundamental principles are the tool which the Constitution uses to resolve controversy,
considering that these to be such, and therefore effective (as the base of social and legal
order which remains faithful to its original matrix, while constantly renewing itself), must
be witness to a present which does not repudiate its history, or rather, a history which extends seamlessly into the present: being and becoming a time .... For this reason, these
principles carry out a function that is both conservative (being faithful to the original
meaning of the constitutional text) and promotional (if lawyers and judges will do better
for society by trying to discover what really works in practice rather than by attempting to
deduce concrete decisions from large, broad, abstract statements of principles of the kind
that fidelity to the Constitutions text would require. Judges, pragmatists claim, should
concentrate on the actual and lmited circumstances of particular cases, trying only to find
accommodations of issues and interests that are successful in that limited frame),567
Bruce Ackerman, We The People. Transformation, (Harvard University Press, 1998).

Ronald Dworkin, Taking Rights Seriously, (Harvard University Press, 1977) 92.
567 Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, in 65 Fordham L. Rev. 1265 (1997).
565
566
206
maintaining the original values, (of which they are an imperfect translation) and at the
same time opening up to new developments.568
The core of the constitutional text is continuously expanded by constitutional policy,
which redefines not only the meanings of constitutional precepts, but also the sense of the
Constitution itself.569 Through the use of language in a text, practices and subjects are created and interwoven and the experience of present time emerges from this. What is more,
it does not finish in that moment, but links up to the historical conscience of existence with
continuous reinterpretation according to the context. In this way, through the temporal
experience, the content of the text takes on a meaning because its narration is the configuration of the temporal experience of the reader, that is the temporalization of the experience.
2.
The Constitution from Past to Present: A North-American Survey
The aim of the Constitution is not only to confirm the decisions of the past. It also aims to
put the present in the condition of finding common ground with the inevitable influence
that derives from such decisions, and then to encourage the present to assimilate possible
future needs. History has a fundamental role in constitutional interpretation only if it
serves the aims of justice. To regard the Constitution as a dynamic framework means to
assign a central role to history that is not limited to a specific moment, i.e. the generation
of the Framers.570 The role of history is to discover legal values or to evaluate the function
of other processes, where the problem lies in deciding how much authority to give to the
Dead Hand of the preceding generations since if the government is based on the consensus of the people, what matters is the presence of this consensus, that is, the support of the
sovereignty of the people. Only in this way will the government be legitimate and able to
approve or disapprove certain constitutional clauses, giving more or less importance to the
Framers generation. In doing this, history plays a vital role, if it is true that no generation
writes on a clean slate and each is forced to confront the past.
The aim is not to recuperate specific decisions from the past which need to be assimilated
but simply to take the best meaning of the Founding Fathers government in order to integrate and complete whatever comes from the past with the rest of history through the understanding of its evolution. Fidelity to history is essential to, rather than in tension with,
the project of maintaining fidelity through history.571 What modern day interpreters take
from the Constitution takes on more importance and value than the Founders opinions.
Antonio Ruggeri, Lidentit costituzionale alla prova: i principi fondamentali fra revisioni costituzionali polisemiche e
interpretazioni-applicazioni <<ragionevoli>>, in 1 Ars Interpretandi 113 (1996).
569 Gustavo Zagrebelsky, Il diritto mite, (Einaudi, 1992) 191.
570 Antonin Scalia, Originalism: The Lesser Evil, in 57 Cinn. L. Rev. 856-865 (1988); Robert Bork, The Tempting of America: The
Political Seduction of the Law, (The Free Press, 1990) 157.
571 Larry Kramer, Fidelity To History And Through It, in 65 Fordham L. Rev. 1634 (1997); Jack Rakove, Fidelity Through History
(or to it), in 65 Fordham L. Rev. 1594 (1997).
568
207
In its search for democratic formulae, the American Constitution differs from ancient democracies which appealed to democratic theories rather than theories of construction of a
Constitution with a strong populist appeal. The American Constitution (a short text of
many authors, written in lapidary style) offers the American people (including those whose
parents come from outside the United States) a vocabulary and grammar of argumentation by which every person can recognize themselves in this people. A.R. Amar proposes
looking at the Constitution in its entirety and not at the separate clauses, aware of that
problem of indeterminacy that has always created difficulties for the interpretation of the
Originalists. Before we think about a synthesis between generations, it would be appropriate to face the problem of synthesis of the constitutional articles and amendments.572
History can sometimes help to identify certain aspects of constitutional clauses and although it is not the only useful source, it is the one which allows us to distinguish between
a genuine architecture of the thing and mere accidents of it. In this sense we can support the historical approach and not believe that history is at the service of justice from the
point of view of a justice seeking account.
Judge Johnson described the Constitution as an experimental project that evolved in a dynamic way, a power-enhancing model if made subject to political experience. American
legislative history of 1793 regarding the Fugitive Slave Clause of article IV, section 2 of the
Constitution and the Fugitive Slave Acts of 1793 and 1850 involved the Framers and the
Ratifiers of the Constitution, as well as the governors of Pennsylvania and Virginia. In
adopting the Fugitive Slave Clause, the Founding Fathers showed that they considered
slaves property, as provided for in the past in common law, and they authorized owners of
slaves to pursue their property (recognizing in this act a new constitutional right), even
when this involved crossing the border with another state. The gravity of the Fugitive Slave
Clause lies in the recognition (for exclusively personal reasons) of a new right of property
protected by the Constitution, guaranteed by the authority of the national government and
independently by the individual states, who were forbidden to interfere with the application of the right in question.573 For the first half of the 19th century, state and federal judges
took on a deferent stance towards Congress, recognizing their power to apply the Fugitive
Slave Clause, refusing to pay attention to matters of justice, equality, or politics, and declaring that article IV/2 of the Constitution implied its automatic application. In 1843, with
the support of decisions and theories proclaimed by the federal courts and the state courts
of appeal, the Supreme Court formulated the idea of the Constitution as a dynamicallyevolving, power-enhancing framework of government whose meaning was definite, and
entrusted to political practice.
Going back over decisions such as Prigg v. Pennsylvania574 or Dred Scott v. Sandford575
reconsidering clauses like the Fugitive Slave Clause, it is difficult to conceive how a faithful
Akhil Reed Amar, Few Thoughts on Constitutionalism, Textualism, and Populism, in 65 Fordham L. Rev. 1657-1658 (1997).
See on this point, Jonathan Elliott, Debates of the Congress of the Confederation (June 2, 1783), in J. Elliott (ed.), The Debates in
the Several State Conventions on the Adoption of the Federal Constitution (Taylor & Maury, 1845), 453
574 41 U.S. 1842, 539.
575 60 U.S. 1856, 404-412.
572
573
208
constitutional stance is desirable. On the contrary, it could even be a constitutional evil

that identifies in the Constitution the main culprit, direct or indirect, of a series of social
injustices.576 The American Constitution was the result of a revolution, with all the compromises that this involved. And it is exactly because of the imperfections present in every
Constitution that the question of constitutional fidelity becomes inevitably a question of
constitutional faith. In etymology, faithfulness requires one to respect commitments
made, while faith means to believe in certain concepts based on others authority or personal conviction. To be faithful to someone or something means to have faith in someone
or something.
Fidelity to the Constitution is fidelity to a political ideology of government, considering
that the ideals of a constitutional moment always reflect present reality and even a constitutionally utopistic notion must always correspond to what is politically possible. In this
discourse, the Constitution is not designed to be a model which can resolve every social
injustice: its aim is to achieve and guarantee the basic structures of the democratic state,
intervening only in the event of a threat to basic human rights and the democratic government. The level of fidelity to the Constitution must be evaluated considering exclusively a
limited number of commitments that it offers: establishing a democracy and protecting
basic human rights. The problem of constitutional fidelity puts text or tradition at the
heart of the debate, underestimating the obligations which are exerted by the social and
political context. A few examples are sufficient to underline the real problem for those aspiring to a constitutionally faithful stance: indeterminacy; the flexibility of the constitutional text on one side and the search for a pure form of fidelity on the other. In this hypothesis, fidelity would be nothing more than a disguised version of originalism which
delegates the solution of constitutional problems to the dead hand.
To consider all the circumstances that over the course of history have undergone variations
in terms of relevant variables, means to adapt the will of the Framers to current parameters, so that there is no gap between their point of view and the point of view of the interpreter today: the temporal diachrony is merely filled by retroactivity of the changes implemented. Vice versa, the hypothesis of distinguishing determining circumstances from a
viewpoint of continuity of the Constitution and other circumstances that can be suppressed, is clearly arbitrary. What matters is not the changing of circumstances with the
aim of translating the will of the founding fathers but the specific point in which those
changes became sufficient to justify a translation. It is clear that it will always be difficult to
find an agreement and that a unanimous consensus on the parameter of sufficiency will
continuously be in discussion.
It is difficult to recognize the original aspects of the Constitution that the Framers would
have wanted to adapt to changing circumstances and those that they would have wanted to
be left unchanged; and supposing the interpreter is able to select the relevant circumstances, would regard the principles that the founding fathers would have carried out in
the light of change. The hypothesis of treating all circumstances that have changed over
576
Michael J. Klarman, Fidelity, Indeterminacy, and the Problem of Constitutional Evil, in 65 Fordham L. Rev. 1752 (1997).
209
time as relevant variables would mean to adapt the Framers thought to our own it would
be easier to question the tools for resolving problems rather than using forms of transposition; without underestimating the fact that it is an arbitrary, discretional and dangerous
line of reasoning to consider some circumstances variable and other constant. On the one
hand the Constitution represents a document to aspire to for the optimal fulfilment of its
clauses; on the other hand, on a more solid level, its continuous implementation is fundamental for the evaluation of its function in the social context, since the Constitution is
above all a tool for justice and general welfare. If we wish to reconcile these two different
ways of being constitutionally faithful and preserve the idea of the American people as a
constituent power, fidelity and constitutional aspirations would require the analysis and
balance of the imperfections and errors of American society (reflected in the constitutional
text), as well as an interpretation of the provisions which over time have hindered the accomplishment of the ultimate aims of the Constitution. Constitutional failure is therefore a
complex and often neglected hypothesis of constitutional theory, whose solution depends
on how a theoretical construction can satisfy the objectives stated: constitutional failure is
the inadequacy of the constitutional tools.
The aspiration to be faithful to the Constitution is unrealistic if one acts in the hope of pursuing definite success, if one compares it with epochal tragedies; such an aspiration must
compare itself with the condition of a Constitution which merits fidelity and which requires humility of the faithful interpreter. An aspiration that it is not of the entire American people, that it is not an unquestionable precondition, especially if we ask ourselves why
African Americans should be faithful to a Constitution containing clauses which caused
them to be treated as inferior human beings, reduced to slavery. Fidelity in this sense is not
merely an act of devotion to the constitutional document but achieves its true realization in
the moment in which the Constitution is interpreted in such a way as to include African
Americans as citizens with the same rights and duties as the white population. An act of
faith, therefore, determined by the faith in the power of self-determination of oppressed
people to be free (according to the well-known formula of the civil rights movement we
shall overcome).577
3.
Constitutional Revision and the Fundamental Core of the Constitution
Writing and reading the Constitution gives an awareness of the history of a state and its
fundamental principles, (among which even political and legal conflicts represent an
achievement), the structure and function of the text, and the institutions which apply the
rules. The theme of revision of the Constitution is a central point in the analysis of the text
and its relationship with time. Iit is linked to a question of legitimacy and effectiveness of
the regulations, given that it represents the process of written rules; it is also linked to the
Human rights are something you were born with. Human rights are your God-given rights. Human rights are the rights that are
recognized by all nations of this earth: The Ballot or the Bullet, Speech at Cory Methodist Church, in Malcolm X Speaks, (Grove Weidenfeld, 1965), 23, 35. Derrick Bell, Racial Realism, in 24 Conn. L. Rev. 363 (1992). Catharine MacKinnon, Freedom From Unreal
Loyalties: On Fidelity in Constitutional Interpretation, in 65 Fordham L. Rev. 1775 (1997).
577
210
recognition of the authority of pouvoir constituant on which the whole legitimacy of the
Constitution is based.
To speak of the revision of the Constitution means to wonder about the existence of a set of
rules and principles which make up a genetic code, unrelated to time, and representative
of a structural limit for amending the constitutional text. The core is made up of eternity
clauses, designed to protect the integrity of the constitutional system, the need for stability, certainty and constancy, and also a series of variables destined to change over time,
adapting to the requirements of the cultural context. In other words, the foundation of the
Constitution, its framework, is shown to be not only necessary, essential and indivisible, a
determining force for the safeguard of fundamental rights and for the recognition of the
identity of the Constitution, but also dynamic.
Although it guarantees its integrity and its persistence in the evolution of time, it does not
deny the Constitution the need for possible changes, the expression of pouvoir
constituant. On the contrary, it reduces the risk of the breakdown of the whole structure.
Therefore, by stabilizing the route through which the Constitution is modified, the process
of constitutional revision would be able to guarantee relative stability of constitutional
rules and avoid the political fragility of the text (as long as political power does not violate
the rules for amending). In respect of the identity of the Constitution a symbol of the history, culture and conflicts of a country, a people and a system of reference, not least the
judicial procedures on which all that is based the values and principles contained in it
represent the fundamental core, a limit to revisionary zeal.
This debate in substantial measure concerns the limits on the authority of constitutional
interpreters, whether judges or others. It was Marshall, of course, who in Marbury v. Madison had defined the importance of a written constitution as consisting in the specification of powers (and limits) of the government. The problem, of course, is how we decide
disputes about what the writing actually means.578
The revision of the constitutional text intervenes on the socio-political scene to upset the
harmony and the stability of a set of rules recognized up to that moment as constitutional
dictate. On the one hand, the amended constitutional text breaks away from the passing of
time (legal, social and political changes), and is subject exclusively to the sovereign power
of the original Constitution. These Fundamental Rules are inflexible and difficult to
change, and must run the life of the state with their unconditional force. They cannot be
changed by the elected powers, they can only be modified in particular circumstances.579
On the other hand, the revision can be seen as politically legitimized by the dominant power in a particular moment in history in which there may be a sense of threat to the stability
of the system. Therefore, the meaning given to the Constitution and the values which
emerge from it will not be those of the dominant political parties in that moment of history. Considering constitutional revision, procedures are needed to integrate future generaSanford Levinson, How Many Times Has the United States Constitution Been Amended? (A) < 26; (B) < 26; (C) < 27; (D) < 27:
Accounting for Constitutional Change in Responding To Imperfection. The Theory and Practice of Constitutional Amendment,
(Princeton University Press, 1995).
579 Georg Jellinek, Mutamento e riforma costituzionale, Italian transl., (Pensa, 2004).
578
211
tions into the Constitution, adapting it to cultural change or organizing these changes over
a reasonable period of time. Failures of revision must also be analysed by taking into account their cultural principles, of particular importance in Italy today. Innovation predominates but it must not sacrifice the conservation of the identity of a Constitution, identifiable through its pro aeternitate clauses and through reference to the elements of a democratic constitutional state.580
Constitutional revision is at risk of being reduced to mere fiction, without any political
legitimacy and breaking away from the social processes that allow the Constitution to be
more than written rules. In the second case, pouvoir constituant limited by time and
space legitimizes the revision and thus gains historical continuity. In this way, a certain
stability is guaranteed for the democratic legitimacy of the constitutional system without
diminishing the idea of continuity that was present until that moment.
When historical events occur that mark important passages, fundamental constitutional
moments, an indicator of the transformation in course and a break with the past, there is a
need to intervene in the constitutional text to repair any possible break with its context in
order to consolidate the democracy. Since the organization of society can change over time,
it is essential that the constitutional provision is suited to the new social order for it to be
effective. The procedure of constitutional revision allows the formal Constitution to be integrated into the moment in history of the material Constitution and to give continuity to
pouvoir constituant.
This process of adaptation, put into motion by the socio-political powers, should create
balance among different individuals with different means of integration, and harmony between text and context. The fundamental core of the Constitution grants harmony through
its text and context, so that even if problems are connected to the former they end up spilling over into the latter. We can find a clear and recent example of the reciprocity of the relationship in the Italian referendum of 2006 which proposed a revision of the Constitution
in contrast not only with the formal aspect of the Constitution (text/language) but also and
above all with the substantial aspect of the context, expressed in terms of concepts, objectives and the effects produced (by them). In the same way, the rethinking of the past can be
understood as an opening or as a retrenchment in the social and constitutional sense.
In such a well-defined framework, the key role is played by the political sphere, which must
work in respect of the explicit and implicit limits of constitutional revision. In the relationship between the sovereignty of the people and the law, the key role is played again by the
political sphere, in the role of responsible management of the common good and protection of formal guarantees and shared values; it should encourage a greater involvement of
citizens in participating in the running of the state and in decision making processes.
Recently, the Italian Constitution is revealed in all its fragility as it bends to the contingent
power of politics, of strategies and party advantage and emerges from the process weakened on the level of recognition and implementation of fundamental principles and consti-
580
Jrg Luther, La Scienza hberliana delle costituzioni, supra note 8, at 108.
212
tutional rights. We are witnessing a time which we could define as diachronic581 in which
the individuals time to construct the future according to expectations (which also depend
on the past,582 that is from the rights acquired and from the principles and recognized fundamental values which represent its fundamental core), seems obstructed by politics,
where short-lived constitutional norms are being affirmed, with no qualities of universality
or abstraction.
3.1
The Italian Perspective
In the Italian context, when the Constitution of the Republic came into force, the principal
aim of the jurists was to avoid all forms of subjectivism that might compromise the certainty and objectivity of the juridical system, in order to guarantee the impersonal character of the law.
Aiming to recoup the time lost by formalism, C. Mortati develops the idea of a material
Constitution which represents that essential nucleus of purposes and forces which maintain all positive regulations.583 It is identified in the politically organised forces of the social
group which in a determined historical moment manage to actively interpret the overall
interest of the political community. The material constitution is, for C. Mortati, juridical
par excellence, because it is from the material constitution that we take the criterion to be
able to imprint the character of legalness on the whole system of successive rules through
which the constitution is developed. At the same time the formal constitution is a guarantor of the material constitution, giving it certainty and stability when it takes on concrete
form in a close tie between state and community.
Italy moved from a dogmatic kind of fidelity to regulations, which is seen to be a founding
principle, to fidelity to constitutional principles, but following a normative plan which retains fidelity to be juridically relevant, managing to re-enter it into the web of constitutional principles. In this way, the constitutional rule is pulled by the material fact, and is
bound to the fact within a structure which is normative and therefore binding. In this
sense, it would be like maintaining fidelity both to the written and secret Constitution (determined by practice, for example) in as much as the latter is both valid and effective.
On the one hand, rights need to be protected and applied effectively, which only the principle of the separation of powers, the fulcrum of the entire constitutional structure, can
guarantee. On the other hand, the organisation of the state is determined by objectives
which are proposed by political activity. Granting political actors operational control on the
level of material fact without recognising it as the source of legality still grants political activity control over legality.
The duty of fidelity to and of observance of the Constitution and its laws is explicitly addressed to citizens and, in particular, to those who have been entrusted with public funcFranois Ost, Le temps du droit, supra note 9, at 36.
Ral Zamorano Farias, Civilizzazione delle aspettative e democrazia nelle periferie della societ moderna, Italian transl.,
(Pensa, 2003); El debate actuale en torno a la concepciones del tiempo en la sociologa, in 31 Cinta Moebio - Revista de
Epistemologa de Ciencias Sociales (2008), available on http://www.moebio.uchile.cl/31/zamorano.html.
583 Costantino Mortati, La costituzione materiale, (Milano, 1940), 87.
581
582
213
tions. In particular article 54 paragraph 2 hypothesizes the existence of a constitutionally

faithful way of exercising public duties, according to a general principle of fairness which
is positivized in the principle of loyal cooperation.584 The integrative function that is attributed to these principles is determined above all by ethical values which describe these
principles but which, when considered in the perspective of balance of interests, assume
the coercibility of an objective parameter of evaluation.
Unlike the American context, the Italian one does not search for a specific content of fidelity to the Republic. In fact, article 54 is used by the constitutional judges in a limited way, as
a kind of hendiadys without any direct normative force and that needs new detailed notes
and specifications on the constitutional or legislative normative level (e.g. the Countrys
defence, article 52).585
Fidelity follows this pattern and in the evaluation of regulations activated by political behaviour, it has a double role to play: either within the political system and a judge of correctness which is also political; or regarding the constitutional system (also connected to
the political system) in which it is directed towards pointing out political solutions which
conform to the regulatory system as a whole. Both constitutional fidelity and rules of
fairness represent limits to the political and ideological action of social forces, where the
aim is not to rule out that contrasts of opinion or of interest or even conflicts of fidelity will
take place. However, it cannot be denied that today a contrast remains between political
activity which often tends to legitimise itself through unshared regulations and the rule
of law which fights to avoid being deconstitutionalised, to avoid being reduced to a mere
symbolic function or to a normativist fiction of a closed system of legality. The risk is of
consecrating the juridical institutions which are to be found in the text of the constitution
and recognising them as mere references which are symbolic of the discourse of power; the
same process of concretisation of the rights and the principle of equality before the law
must also include the principle of constitutional provisions in order to avoid exclusions between the process of applying the law and the generalised and inclusive normativity proclaimed by the text of the Constitution.
Moving on from these conclusions, we are aware of the need to draw a line not only at the
textual positivisation of the written word, but also at those rights which are not written
(but still faithful to the constitution), where the element of omission (where it has not been
written down) is not translated into either a negation of validity or a declaration of unconstitutionality. The assumption necessary to carry out this entrenchment is that of negating
validity to phenomena which belong to unwritten rights (including political activity) which
are placed extra constitutionem.586 In this picture we include both attempts at constitutional reform which are unfaithful and political tendencies, institutional conceptions and
Giorgio Lombardi, Contributo allo studio dei doveri qualificati, (Milano, 1967), 179; Luigi Ventura, La fedelt alla Repubblica,
(Giuffr, 1984), 130; Art. 54, in (ed. G. Branca), Commentario della Costituzione, II Vol., (1994); Alessandro Morelli, Il dovere di
fedelt alla Repubblica, in R. Balduzzi, M. Cavino, E. Grosso, J. Luther (eds.), I doveri costituzionali: la prospettiva del giudice delle
leggi, (Giappichelli, 2007), 175.
585 Alessandro Morelli, Il dovere di fedelt alla Repubblica, supra note 29, at 167; Decisions n. 16/1973, point 2 and n. 31/1982,
point 3.
586 Michele Carducci, Doveri costituzionali infedeli per Nichtausbung. Spunti tedeschi per le tentazioni italiane in R. Balduzzi, M.
Cavino, E. Grosso, J. Luther (eds.), I doveri costituzionali: la prospettiva del giudice delle leggi, (Giappichelli, 2007), 360.
584
214
constitutional interpretations which are characterised by the phrase condoned obscurities

or actual conditions which are formally unexpressed. The written constitution takes as it
source customary behaviour or, rather, a series of behaviours which are faithful to the criteria of conduct to be found in the constitution. Because of this, constant respect over time
of such criteria permits the assimilation of customs into a living constitution (as the ensemble of constitutionally oriented customs). On the other hand, we must observe how the
dishomogeneity of the political-social structure is marked out by a complex of juridical,
legislative and political activities which redefine the meaning of the text of the constitution
and the unity of sense of the Constitution, following an homogenous vision and systematic criteria. Therefore, in the possible diachrony that is set up between the activities of
constitutional policy and conformity to the fundamental of the Constitution, the objective
parameter of fidelity to the Constitution could be saved exactly where the text of the Constitution may be recognised as a document to which we can trace back the solution of every
legal problem through its complex unitary meaning which its interpreters grant to it and
safeguard. In this sense, the relationship between the rigidity of the written text (the Constitution) and the prohibition of sources extra ordinem (customs) is played out on different levels and involves problematics which find their meeting point in the declaration of
illegitimacy of those norms that oppose the Constitution.587 The judge needs to remain intra Constitutionem through fidelity to a provision which is not imposed in order to be
mechanically carried out, but to oppose the emerging empiricism of factual contingency
and to identify an idea of the Constitution which is assumed to be the juridical statute of
the political.
Generally, the observation of constitutional gaps is the legislators duty, because constitutional reform is the safest way of filling these gaps; and constitutional gaps must be managed by the legislator, because the Constitution is changed according to how state power is
exercised. However, this kind of positivism is not insensitive to the insufficiencies of written law, which is incapable of explaining those rules (or regularities) which, although they
operate outside the constitutional text, are not passing phenomena but behaviours repeated over time, or the fruit of constitutional reforms or, indeed, of constitutional change.
But if political means belonging to the state, then in the concept of the political the
State has already been thought of: in this sense, the activities that develop according to
unwritten precepts and which form in their entirety an ethical policy belong to the legal
sphere, in as much as they contain recognised and guaranteed provisions for the exercise
of the states power, even if, in the majority of cases, they are not binding in character, but
flexible, in that they are always adapting to the political situation which itself is in constant
change.
The past is full of examples of constitutional dynamics, of attempts to delegitimize the
Constitution and reveals how the circuit of revisionism (like referenda or constitutional
laws) is the easiest way of pursuing certain political aims. And paradoxically, it is easier
Michele Carducci, Doveri costituzionali infedeli per Nichtausbung. Spunti tedeschi per le tentazioni italiane, supra note 31, at
353; Franois Ost, Le temps du droit, supra note 9, at 37.
587
215
because its physiological relation to the Constitution allows political forces to pursue a legitimate (because legal) purpose of defrauding the Constitution of its content. Thus it was
in 1993 with the proposal for institutional reforms, with the referendum of the same year,
with the revision of 1997 and with the referendum of 25 and 26 June, 2006.588 In all these
cases the explicit limit set by the Republic against any attempt to sterilise the rights confirmed in Part I of the Constitution (considered the fundamental nucleus) was stepped
over. The argument was that the change would only affect Part II of the Constitution.
By fidelity we do not mean only a general respect for legal forms, but also and above all, a
harmony and conformity with the content of constitutional provisions. And it is exactly in
this sense that we can speak of defrauding the Constitution, that is: by designing an innominate crime in which we can recognise a teleological assignment, the autonomy of the
subjects and the demarcation between principles and rules; by indicating an evaluative
property which has been freed from the formalism of literal textuality and of its deductive
application, and is, rather, projected onto the question of ends and of the value of an order
of rules which is not only coherent, but, above all, does not conceal its constitutive force by
abandoning it to the controlled and uncontainable caprices of those for whom it is intended. When the legal and political systems interweave and overlap and begin to use the
same language, or if they reverse roles causing a profound underlying pathology, and discussions take place and decisions are made within the bounds of political correctness but
outside the correct constitutional structure, the risk of defrauding the Constitution becomes an ever present, even natural element. It outlines new rules of a game in which politics substitute juridical provisions through the circuit of fraud which travels through the
finality of the liberty of forms in the methodological rigour of the politically correct.
Fidelity follows phases of transition like a parameter which perceives and reflects the theoretical formulations concerning the Constitution as a duty and, in its manifestations, fidelity is a function of history, of the context in which it is practised. It would be ingenuous to
imagine that some kind of fidelity exists which can be isolated from contingent factors.
Certainly it is desirable to have a state system which is organised for functions, relations
and competencies which are faithful to the Constitution. However, history teaches us otherwise: fidelity is both for a decision and for the person who takes it; there is fidelity to legal forms and to ordinary legality, and when we consider constitutional fidelity these arguments are even more important because, in fact, fidelity is always in the hands of those
who should be faithful and these possible fractures can spill over onto constitutional legality. In clear and authoritative words: legal changes do not provoke social transformations,
but transformations that take place in the real world have always caused the most important changes in the law. The Constitution situated in time is an historic event in order to
present itself as a process which is realised in time, as an open Constitution which is in
need of an adequate theory of interpretation. In this regard it is opportune to democratically define the areas in which power the state organisation itself operates. At the level
Gianni Ferrara, Premessa, in A. Pichierri (ed.), Quale revisione costituzionale dopo il referendum del 25-26 giugno 2006,
(Mandese, 2007), at 9-10.
588
216
of fidelity, the placing of the Constitution in space allows us to grant it the respect that is
reserved to it, that is, it allows us to complete the picture so that the constitutional provisions are not lost in existential ontology, whose unfruitful end is the same as for all ahistorical conceptions of subjectivity, well expressed in the pitiful human Dasein of Heidegger, in the confused historical conscience of Jaspers or in the labyrinthine hermeneutic
historicity of Gadamer.589
Conclusion
Constitutional fidelity does not mean a mere protection of tradition or a hierarchical supremacy of the Constitution, and from this viewpoint the American meaning is completely
different from the European expressions of Defensa de la Constitcin, Sentimiento
constitucional (or Verfassungsgefuhl), Anerkennung. Constitutional fidelity does not
mean a mere search for a behavioural standard; it realizes that relationship within a specific context of institutional (political and judicial) behaviours and the fundamental goals of a
community. In Italy this relationship has as yet not been created.590 In the United States,
constitutional fidelity is not a search for a duty of observance by someone to something. The American spirit does not accept this kind of synthesis. Facts are produced by
subjects; so those facts allow to re-build the feeling between the American people and the
constitutional document.
Fidelity is not a tie with the past but, paradoxically, with the future; it is a way to understand a legal system as a social system, where the social elements cannot be reduced to the
single conscience and where history has to be combined with the experience and the activity of observing, without any a priori approach to the concept of Constitution. The Constitution legitimizes itself in the course of history; and fidelity to history involves any kind of
relationship, as it were a double-lane way, where fidelity to the Constitution is fidelity in
ourselves. Talking about fidelity implies dealing with an unknown future and discussing
the past as if it were a theme of social communication which strengthens the legitimate
constitutional belonging to a people.
The necessity for the constitutional text to open up to the evolution of society is useful to
identify a new cultural equilibrium through indicators of predictability provided by dialogue and negotiation between individuals and groups who participate in the decision making process. In this way, the text is adapted to its context, constructing the basis of what
has been defined as a time in history and what is therefore a time of the Constitution
since it determines content and objectives. Time in the Constitution on the other hand
can be abstract or tangible. Abstract time is eternal time, in which the abstract nature includes numerous matters without identifying itself necessarily with any of these. Tangible
Pedro De Vega Garcia, Mondializzazione e diritto costituzionale: la crisi del principio democratico el costituzionalismo attuale, in
3 Diritto pubblico 1087 (2001).
590 Michele Carducci, Laccordo di coalizione, (Cedam, 1989), 104.
589
217
time is measurable, like the time available to the constitutional institutions to carry out
their functions.
In judicial activity, when a judge decides which law to apply to a specific case, a meaning is
inevitably given to that fact. Giving a meaning, characterizing the framework of that fact,
inevitably produces a degree of certainty (within the dimension of meaning). In the temporal dimension, the giving of meaning is possible because of the constant elements (objects and situations) and variables (events), and it refers back to other possibilities which
present themselves as real (actual) and possible (potential) at the same time: from the
moment in which a decision is taken by a judge that decision is automatically linked to future possible decisions and social needs.
In the context in which an individual finds himself imparted by experience, by acts and by
processes, deeds can be perceived as merely practical experience (Erfahrung) or, if representative of an ideal quid, as an essence,591 as experience aware of life (Erlebnis).592
The Constitution as a historical subject belongs to a moment in history, because only in
this moment of history can its characteristics be explained, allowing it to remain unchanged and guaranteeing stability. It is placed in history, and is itself history it is not
temporal because it is in history, but it exists and it can exist in history only because it
is temporal in the foundation of its being.593 It is a historical time that endures by imposing
itself as a narrative identity capable of change without breaking. Under the aspect of innovation, the Constitution is therefore also the expression of a situation of cultural development (kultureller Entwicklungszustand). Culture gives life and form to a Constitution in
which the people are their material Constitution or the context that determines the effectiveness and the development of the formal Constitution (the text). The Hberlian image
of the Constitution as a cultural process develops the Smendian idea of the Constitution
as a dynamic process of integration whose strength lies in communicative and symbolic
ways of negotiation and reciprocal tolerance rather than in arms.
Finally, the concept of constitutional fidelity seems to be a communicative, ethical and
linguistic code which enables the idealization of certain values independently from the interests involved in the judicial decisions and to work in a bi-conceptual dimension: on the
one hand, for defining the contents of practical judicial decisions in the perspective of continuity, and, on the other hand, for identifying those fundamental reasons which are mutually recognized and accepted.594
Edmund G.A. Husserl, Idee per una fenomenologia pura e per una filosofia fenomenologica, I, Italian transl., (Einaudi, 1965).
Hans G. Gadamer, Verit e metodo, Italian transl., (Bompiani, 2004).
593 Martin Heidegger, Essere e tempo, Italian transl., (Longanesi, 2000).
594 George Lakoff, Sette idee per un discorso, Italian transl., in 789 Internaziontale 36-37 (2009).
591
592
218

DOI: 10.989765/2016.15.8.45
"Agile Alliances" line in Azerbaijan-USA relations

Ramazan Uslu
Relations with the U.S. and Europe are a priority in the foreign policy of Azerbaijan. Beginning the early 90s of the last century, the influence of America and Europe, on the
post-Soviet space, as well as the South Caucasus became stronger. In particular, the
United States pursues a more active and influential politics. Western countries have
played a key role in destroying Warsaw Bloc and the Socialist camp to turn our newly
independent countries towards Europe and the U.S. Other factors were freedom, democracy, respect for human rights of the western states, as well as their economic and military power, had to act as a promoter. No issue was resolved without the involvement of
the Western countries in world politics. Therefore, the post-Soviet countries, as well as
Azerbaijan, must to a large extent take the Western factor of foreign policy into account
and have done it.
I.
Introduction
In 1992, U.S. Secretary of State James Baker visited Baku in order to establish official relations between the two countries. The U.S. Embassy was opened in Baku in March of the
same year. After that a continuous relationship was established. However, due to the inability of Azerbaijan government to raise the level of cooperation, the U.S. Congress in October 1992 adopted a document: so-called "907 amendment" to the "Freedom Support
Act". Thus, Azerbaijan has got a serious blow from the U.S. policy. It was clearly understood that Azerbaijan had to make a lot of the amendments to comply with foreign policy
of the West. Starting the second half of 1993, the country began to take pragmatic policy
towards the U.S. The first visit of the President of Azerbaijan to the United States was the
Assist. Prof. Dr. Ramazan USLU Agri Ibrahim Cecen University, Art and Sciences Faculty, History Department, Chair,
ruslu@hotmail.com.
219
beginning of the process. That visit took place in September 1994. On that date the 49th
session of the UN General Assembly was held. In the speech at the session the President of
Azerbaijan stressed that "the leading role in shaping a new world order belongs to the
United Nations... "595.
It is another part of his speech he emphasized that the U.S., Europe and Russia played a
major role in world politics, and although there were differences between the West and
Russia in their views on the resolution of the Nagorno-Karabakh conflict, he said that opportunities to reach a common position didnt exhaust. His emphasis on the UN leading
role in shaping a new geopolitical landscape was a sign of strong side of Azerbaijan foreign
policy. So, Azerbaijan was interested in developing relations with any major geopolitical
power , but the regulation of international relations couldnt be done by different states,
must be available to the UN only. At the same time, if Azerbaijan accepts direction towards
the West in the foreign policy as a priority, it does not mean that it intends to entrust totally its fate to United States and Europe. So, Azerbaijan is interested in the close cooperation with Russia, however it does not want to become dependent on596.
Two factors are standing behind this kind of chosen course. First of all Azerbaijan
shouldnt turn into the arena of the world's great powers clash, on the contrary, the powerful countries of the world have to gain a chance to cooperate with Azerbaijan. Secondly,
Azerbaijan should select the line of "agile alliance" not to get under the influence of any
geopolitical power. "Agile alliance" enables the country to come out of the grip of global
power poles, as well as lets you choose the position in the interests of the state in rapidly
changing situations. This course does not make Azerbaijan take responsibility in front of
any geopolitical power.
In this context, the Director of the Research Center of the Russian Postindustrial Society Vladislav Inozemtsevs evaluation seems to be very interesting. Russian professor writes:Azerbaijan itself is the only small country which is in the right place at
the right time. Its current and future leaders are turning to be great reformers. It
has e all chances to become the eq /
: ., . , , 1994, 174
.
uivalent of Singapore and Taiwan of the Caucasus" 597.
1.
A well-known politician and statesman Zbigniew Brzezinski valued Azerbaijan as one of the most important "geopolitical support points of Eurasia. In Z.
Brzezinski's geopolitical concept those "geopolitical support points" should fulfill
their function as "points" of influence on major geopolitical competitors of the U.S.
/ : ., . , , 1994, 174 p.
596 Mammedov N. Foreign policy: Realities and the prognosis. Baku, 2013, p. 134
597 Inozemtsev V.L. The great politics in little places: Azerbaycann geosiyasi arenada gelecek planlar nedir? // Azerbaijan Focus,
2009, 1(1), p. 70
595
220

For example, Turkey or Azerbaijan could serve as a support point on the Caucasus to perform the U.S. policy in Russia. Here's a kind of a goal to influence of a
certain country upon another one598.
Azerbaijan is of those independent countries who dont accept namely this function. His
"agile alliance" formation attempts in foreign policy and its reference not to great states
but to international organisations (mainly UN) refers to the realization of the purpose
served. This policy turned Azerbaijan, not becoming an instrument of any great state, to be
a leader of the South Caucasus and a global level geopolitical player. The following thought
of the President Ilham Aliyev expressed the very position of our country: "Azerbaijan has
never been and never will be a changing geopolitical card as some of its neighbors599.
Figuratively speaking, Azerbaijan has been able to transform its status of Euroasian geopolitical support point country to the geopolitical player. This should be considered as the
greatest success achieved during the 23 years of independence. Contents of policy of our
country in the direction towards the U.S. and Europe we consider more constuctive and
should rather be looked at in the light of this success.
First official visit of Heydar Aliyev to the U.S. in the summer of 1997 was of great role to
develop relations between Azerbaijan and the U.S. Yet in 1994, he being in New York at the
49th session of the UN General Assembly in New York met with the U.S. President Bill Clinton. At that meeting Heydar Aliyev gave broad information on Azerbaijan, and Azerbaijan
leadership position on restoration of peace in the region, and provision of safety. Then U.S.
President valued highly his Azerbaijani counterpart arguments, and expressed his beliefs
on prospects of cooperation between the two countries. He stressed that the "Contract of
the Century" was the great historical event600.
And in 1997, the two countries already started to develop concret content relations.
B.Clinton announced three aspects in relations with Azerbaijan. Those are peace and security restoration, Azerbaijan sovereignty security and terretorial integrity restoration and
issues on democracy development. He explained his attention to those problems because
of strategic position of Azerbaijan in the region, to gain successful development and sustainable stability the Nagorno-Karabakh conflict should be solved through serious steps601.
After Presidents expanded talks, the Joint Statement on the U.S.-Azerbaijan relations, and
mutual investment protection and promotion agreement were signed between the governments of the Republic of Azerbaijan and the United States. Heydar Aliyev made the comBrzezinski Z. The Grand Chessboard. American Primacy and Its Geostrategic Imperatives, Basic Books, NY, 1997
Mammedov N. About the main directions of Azerbaijan foreign policy // Azerbaijan Focus, 2010, 2 (2), p.20
600 Inozemtsev V.L. The great politics in little places: Azerbaycann geosiyasi arenada gelecek planlar nedir? // Azerbaijan Focus,
2009, 1(1), p.69
601 The President of Azerbaijan Republic Heydar Aliyevs statement about the mutual protection and encouragement of capital
invests and the joint statement about America-Azerbaijan relatons in the ceremony of signing the contract between the
governments of Azerbaijan Republic and USA/ Azerbaijan newspaper, August 3, 1997.
598
599
221
pact statement at the signing ceremony on ways of cooperation between the two countries.
The statement said: "Azerbaijan appreciates its independence as a great historical
achievement and the preservation of our independence an issue of honored responsibility.
Our nation is committed to freedom and national independence, and will do so in the future. It is very important and significant for us to do this in cooperation with the United
States to build partnerships and expand relations, development."602
There was a greater meaning behind every word of the President of Azerbaijan. With that
the U.S.were informed that Azerbaijan keeps ita independence and sovereignty were beyond everythng. It was noted that, everyone who wanted to harm it, including the United
States, Azerbaijan would resist as a state. The fate of Azerbaijan's economic and energy
cooperation with the U.S. will depend on of those principles implementation. Alonside
with those aspects pointed out by Heydar Aliyev, he stresses that cooperation development
and its expansion with the United States was very important.
The situation was clear to both sides. Azerbaijan would not accept any harmful to sovereignty condition. It would never accept occupation of territories. So he was decided to create ademocratic state. He was determined to develop relations with the West on parity
counterpart conditions. Finally, he would do his best to provide security and establish
peace in the region. The official Washington naturally recognised and signed the abovementioned document603
One very significant feature of the said document should be stressed. Azerbaijani President
wisely presented econimic-energy cooperation in relations with geopolitical factors. To get
provision for counterpart investment means to provide totally sovereignty and independence to Azerbaijan. Once large investment is done into Western-South Caucasus, the special attention should be paid to its security provision. The investments security directly was
dependent on Azerbaijan stability. Thus, the West is interested in allprocesses related with
the internal stability in Azerbaijan. From this point of view, the problem of NagornoKarabakh, Azerbaijans gradually democratisation, security of investments are still staying
in the interest range of Washington604.
Heydar Aliyev obtained strategic results with his first visit to Washington. The following
processes fully confirmed foresight of Azerbaijan leader. The first, the security problems of
the international energy projects hesitated Armenia and its supporters from wide sabotage
plans. The second, the known events between Russia and Georgia on August 8, 2008
The President of Azerbaijan Republic Heydar Aliyevs statement about the mutual protection and encouragement of capital
invests and the joint statement about America-Azerbaijan relatons in the ceremony of signing the contract between the
governments of Azerbaijan Republic and USA/ Azerbaijan newspaper, August 3, 1997.
603 Mammedov N. About the main directions of Azerbaijan foreign policy // Azerbaijan Focus, 2010, 2 (2), p. 17-50.
604 Mammedov N. Foreign policy: Realities and the prognosis. Baku, 2013, p.136
602
222
showd, that security of energy progects was secured by global geopolitical powers. It is zero
danger to those projects. Up to now it is the same in every case605
It is seen in the above presented thought of B. Clinton that important factors which give a
special content to Azerbaijan- U.S. relationship and they consist of gaining internal stability and successful development. So, Azerbaijan authorities first of all gained internal stability, as well as parallel to that it gave a stimule to social-economic development. The internal stability was gained and became able due to elimination of attempts of one-by-one
coup-de-tants. The leading factor of social-economic development was sign of the Contract of the Century606
Having obtained these two successes the President of Azerbaijan did his first official visit to
Washington. That was well-calculated step towards the future. For the comparison, some
heads of post-Soviet countries were going to Washington with requests, to ask help, to
make a political marketing to stay at the power. But nevertheless of hard aggression the
President of Azerbaijan obtained internal stability, signed strategic economic contract
(The Contract of the Century) and went toWashington as a leader of the independent
state607
Thus, the first official visit of the President of Azerbaijan to the U.S. defined directions of
relationship strategy and concret development between the two countries. The U.S. party
showed that being in the relationships with Azerbaijan it recognised that the Southern
Caucasus as strategic region. And then they paid strict attention to provide peace and security here. And finally, in this context protection of state sovereignty and restoration of
integrity of Azerbaijan became important for the U.S.
These three aspects could be consolidated round two ideas. The first, the U.S. gives great
priority to security of the Southern Caucasus. The second, principal importance for them is
sovereignty of Southern Caucasus countries. And it was not difficult to feel what stood behind these thoughts: not to get under the influence of other than the U.S. mighty geopolitical powers. The U.S. being global power were thinking of establishing hegemony in the region608
The U.S.-Azerbaijan relationship destinated cooperation between two countriesbased on
those principles for further years. Up to now the same principles are modifying the range
and the content of their cooperation. The most essential is that Azerbaijan is faithful to
promises done.
Mammedov N. Foreign policy: Realities and the prognosis. Baku, 2013, p.137
., . . : XXI / , .
: : . -, 2007, p.145
607 Sevdimov T. The resons of crisis between Russia and Georgia. Bak, 2013. 506 s.
605
606
608
Mammedov N. Foreign policy: Realities and the prognosis. Baku, 2013, p.138
223
On September, 8-9, 1998 the international conference on restoration of Historical Silk Way
was held in Baku. On April,17, 1999 there was Baku-Supsa oil pipeline opening ceremony
with participation of the Heads of Azerbaijan, Ukraine and Georgia. On November, 18,
1999 in Istanbul in the frame of OSCE Summit the agreement On the transportation of
crude oil by the main Baku-Tbilisi-Ceyhan export pipeline through areas of Azerbaijan Republic, Georgia and Turkey Republic was signed. That was serious step towards strategic
cooperation of region states and their integration into Europe. On May, 24-25, 2005 BakuTbilisi-Ceyhan main oil export pipeline was given to exploitation. The same year on October, 12 the Ceremony of Geogian part of oil pipeline exploitation start was held.
Alongside with energy area, Azerbaijan participates in the U.S. counter-terror and peacekeeping program. Azerbaijan operators carry their functions as part of International Security Forces in different areas of the world. Our country does its best in sharing responsibilities in security, weapon control, defense and other areas of Azerbaijan and the U.S. relation
development. The process of cooperation broadening is being continued in the frame of
the Euro-Atlantic Partnership Council and NATO Partnership for Peace program. The
latter issue is shown as a separate item in the Order of President Heydar Aliyev released on
Septembeer, 2, 1997609. As a whole, Azerbaijan was always in close cooperation with the
U.S. in security issues.
Our country being involved in different programs was always implementing all tasks and is
continuing to do so. For the past period Azerbaijan was an active participant in international projects carried out in the Southern Caucasus by the West. And all projects of global
importance which could influence western energy security were supported. Nabucco,
Southen Corridor, TransCaspian... The U.S. doesnt imagine those energy projects
without Azerbaijan.
It is worth mentioning some thoughts addressed during the meeting of Heydar Aliyev and
Richard Morningstar on December, 16, 1998. During the said meeting in the President Palace R. Morningstar keeping in mind cooperation in the energy area told Heydar Aliyev:
You played a special, exclusive role in creating a turning point in this area610
At the same meeting the President of Azerbaijan, speaking about further energy provision to the West from the Caspian Sea and its special importance, presented to attention of
the guest in very interesting manner saying: You know, that nobody can tell you the age of
the Caspian Sea. It has the same age as the Earth has. But in XX and XXI centuries a great
revolution has taken place in mineral resources of the sea. We are the participants of this
About the measures of expansion of partnered relations between the Republic of Azerbaijan and USA. The order of the President
of Azerbaijan Republic. Baku city, September 2, 1997, 657. URL: http://e-qanun.az/files/framework/data/4/f_4250.htm
609
From the conversation at the meeting with the President of the Republic of Azerbaijan Heydar Aliyev and the representative
delegation with the privite councillor of the President of the United States and the Secretary of State, the ambassador Richard
Morningstar - Baku, December 16, 1998, "Heydar Aliyevs heritage" International Electronic Library, URL: Http: //library.aliyevheritage.org/ az/86084273.html
610
224
revolution. I consider that this revoution will be useful for all nations, including Azerbaijan
nation. And for that we have to work hard611
In his speech at Georgetown University (Washington, September 18, 2009) William C.
Burns declared touching upon the problem of energy projects realizing among Azerbaijan
and USA:
The conversation about the development of the trade brings me to the energy problem
which is the next area of our bilateral co-operation. The USA and Azerbaijan have a lasting
intercession in the important strategically energy projects creating the relations between
West and East.
This week Azerbaijan is getting ready to celebrate the fifteenth anniversary of the Contract
of the Century which caused the building of Baku-Tbilisi-Ceyhan pipeline. Today with the
help of this pipeline about one million barrel oil is exported a day. Azerbaijan finishing the
building of the Southern Caucasian Gas Pipe is on the threshold of the new and more perspective level of the development of the energy section. Signing Nabucco Contract among
governments was an important event in the opening of natural gas corridor to Europe. Developing this opportunity by Turkey and Azerbaijan and coming to an agreement on the
required price, transit and other problems for the reality of Southern Corridor is very important. Such projects are not only satisfied with the opening of Caspian energy resources
to the world, but at the same time it also speeded Azerbaijan economy growth up and secured the more independent economical future of Azerbaijan nation.
I see that some people consider the energy policy of USA and Russia as a next Great Play in
Middle Asia. Such kind of thinking is wrong. In energy problems as in all other trade
branches though always some competition elements exist the USA doesnt believe the unsuccessful play of energy safety. Trying together we can have more benefit than to be
against to each other. We decisively believe that having more pipe-lines among countries
increases the number of different sources and routes, secures better marketing prices and
defends from the obstacles in the supply of favor of all countries. That is why we hope that
Azerbaijan and its neighbors will continue the oil production. In order to help to show the
production in Europe and in different markets with the aim of finding the reliable and
transparent ways we agitate the negotiations now going on among Azerbaijan, Turkmenistan, Kazakhstan, Turkey and other supporters. And I want to assure you that the USA is
ready to work with Azerbaijan, different friends of ours in the region and the private sections in order to strengthen and broaden the global energy supply612
Some U.S. activities which create questions are observed currently on the background of all
that. The official Washington doesnt want to link normalization of Turkey Armenia rela611
612
Ibid
William C. Burns. Azerbaijan US relations. Goergtown University, Washington city, 18 September, 2009.
225
tionship with Nagorno-Karabakh problem solvation. Former U.S. State Secretary Hilary
Clinton being on trip in June, 2012 in Southern Caucasus stated in Yerevan, that the official Washington doesnt see any relation between Turkey-Armenia issue and NagornoKarabakh conflict solvation613 . As to us, that was an attempt to turn us from totally independent policy course away, but that attempt was a fiasco. Though the USA has also own
arguments. W. Burns said them so:
But how does the Azerbaijan government struggle with the corruption as it promised in
its National Strategy in the condition of not having the independent press which shed the
problems? The free press and the strong civil society are the efficient means of saving our
citizens and struggling against the corruption. Arresting of opposition journalists periodically, preventing the broadcasting of Free Europe Radio/ Freedom Radio, The Voice of
America and BBC in Azerbaijan had created the serious troubles in this sphere. We have
invited Azerbaijan government to pay attention the results of such activity influence in
comparison with democratic aims and the more extensive development. Increasing of
transparence in management will help Azerbaijan to realize the democratic principles affirming itself and the economical development which it wants to achieve. The US renders
assistance and gives trainings in order to improve the state expenses of planning, broadening the opportunities of trade finance system and strengthening of competition abilities of
private section. Our assistance activity supports the election reforms and finances the education of journalists. They also defend the Non-Governmental Organizations which help
the youth groups struggling against the corruption and creating new spaces in internet
networks for democratic discussions. We hope that the active civil society completes the
role of the government and creates the dynamic state614
Of course, the U.S. understands that Azerbaijan pursues totally independent foreign policy.
Azerbaijan exports oil and gas over 7 routes. Internal stability is at the high level. Economy
of the country is increasing. Azerbaijan is a member of the international counter-terror
coalition. It is one of main participants of interantioanl energy projects. Analysts emphasise that Azerbaijan has got a serious place in energy provision to the West. Simultaneously, Azerbaijan plays an important role in provision the post-Soviet countries with energy. At this background formation of the democratic society successfully continues. In
this case Azerbaijan should be considered, because Azerbaijan is very important partner of
the West. However, the manifested relations of the U.S. and Europe in respect of NagornoKarabakh conflict is contravertial to partnership.
The importance of Azerbaijan issue for the West was explained by analyst Ariel Cohen in
an article in The National Interest magazine, specially noted: The occupation of Karabakh is a powder barrel which can explode the Southern Caucasus... If it happens...Then
/ Regnum, 2 2012.
URL: http://www.regnum.su/news/1537836.html.
614 William C. Burns. Azerbaijan US relations. Goergtown University, Washington city, 18 September, 2009.
613
226
the chance of attraction to regional issues increases for Iran, another partner of Armenia.
All that does not meet the U.S. national interests615
In his speech at Georgetown University (Washington, September 18, 2009) William C.
Burns declared:
From the security view point one of our most superior priorities is struggle against the
forcible extremism. Azerbaijan being moderate, wordly and forming the main part of the
population from Mouslems was one of the main ally in this campaign. It shared the informations, intensified the efforts of fighting against financing of terrorism and arrested the
suspicious terrorists. Azerbaijan being the active participant of the Intercession Program
For Peace of NATO develops the many-branched secirity relations with own neighbors in
the region. It periodically helped to NATO and allied operations in Irag, Afganistan and
Kosovo, dear Ambassador, we appericate them very well. In 2008 Azerbaijan armed forces
finished five years military service in Irag, for many times with USA Marine Forces. This
year the number of Azerbaijanian goodwillers in Afganistan has been increased from forty
five to ninety. Azerbaijan also gives the valuable rights such as to fly from its air space, to
fill fuel and to land to USA and union air forces planes which are sent to Irag and Afganistan. As Azerbaijan gives the important gifts to the international security efforts we understand that the country also has problems about security. The main way of achieving the
lasting peace in the region is to achieve the sollution of Mountainous Garabag problem
with peace. Let me assure you that Prezident Obama and Secretary of State Clinton are
ready to do everything to support this purpose. We want to see the adjoining living of
Azerbaijan and Armenia in peaceful situation which makes the way to the mutual development616
The former Minister for Foreign Affairs of Russia Igor Ivanov who was the secretary of Security Council during 2004-2007 years writes that Establishing of the process reconstructing of the world system which began from 80s years of the last century hasnt finished yet. We shall feel the influence of the changes after 10s years. But this transition is
still being accompanied by the painful processes617
The creation of critical situations in the ranks of painful processes noted by I.Ivanov has a
special place. Canadian professor of international attitudes Ramesh Takur who was the
assistant of General Secretary in UN Organization considers that UN Organization will
not be the centre of co-ordinating the national interests and their compromiser negotiator
among states which have the deep difference opinion among them618 . The famous specialists in political-study Z. Bjezinski, H.Kissinger, F. Zakariyya and others note that the soluCohen
A.
The
Secretarys
Daunting
Agenda
//
The
National
Interest.
June
4,
2012
http://nationalinterest.org/commentary/the-secretarysdaunting-agenda-7001.
616 William C. Burns. Azerbaijan US relations. Goergtown University, Washington city, 18 September, 2009.
617 .. XXI ? // , 2011, 6, c. 17-27.
618 . :
// , 2011, 6, c. 157-167.
615
227
tion of critical situations is a difficult process. In 2012 Russia included the regulation of
critical situations as a separate paraghraph to the document of About the legislative enactment of realizing of foreign policy course of Russia Federation619. As it is seen from the
beginning of the second half of the 20th century creation of critical situations, different
characteric conflicts is the main problem worrying the world community. From 1988 Azerbaijan was also drawn into the conflict in its objectionable cases. A group of Armenian
chauvinists living in Mountainous Garabag area supported by Armenia began separatist
activity. Disintegration of the USSR this conflict overturned the war between Armenia and
Azerbaijan. Armenian armed forces getting strong support from abroad occupied 20 percents of Azerbaijanian area. So Armenian-Azerbaijan, Mountainous Garabag conflict began. The following processes showed that outside forces have a strict influence to this conflict and giving the extensive support to the aggressor they create obstacles to restore of
Azerbaijan territorial integrity (1, 188-189). And this fact was a cause for associating with
Euro-Atlantic area.
One of the directions of USA-Azerbaijan relations is co-operation in NATO.As it is known,
Azerbaijan-NATO relations started their formation in March 1992 with the admission of
Azerbaijan to its body, the North Atlantic Cooperation Council. The Azerbaijani delagation
first participated in the seminar of the NATO countries held in Turkey in October 1992 and
met its Secretary-General Manfred Werner. A high-level cooperation between the North
Atlantic Alliance and Azerbaijan was founded in 1994. During his visit to Brussels on May
4, 1994, the President of the Republic of Azerbaijan Heydar Aliyev signed the "Partnership
for Peace Program" (PFP), which provided the cooperation of NATO cooperation with former Soviet republics (14, 54-55). Till 1994 Azerbaijan-NATO relations almost had a episodical and superficial character. But later Azerbaijan which had the military operations of
separatist powers in its area, having occupied 20 percents of the territory by the Armenian
military joinings needed to collaborate with powerful international organizations, especially with NATO.
First of all it is an undeniable fact that NATO can play a great role in the peaceful solution
of Garabag problem, free the occupied territories of our republic, return about more than
one million refugees and displaced persons to their own native lands. On the other side
having the co-operation with NATO our republic gets the opportunity of creating the
strategical balance and security system, to solve the disputed matters due to the international law standars, to use the great authority of NATO in the solution of independence and
security problems of Azerbaijan620.
The Azerbaijani-NATO military cooperation strengthened more in 1997. In same year,
Azerbaijan joined the Planning and Review Process (PARP) of the organization. This pro .
, 7 2012. URL: http://kremlin.ru/acts/15256.
620 Caferli V. Azerbaycann Qerb Tehlksizlik sistemine inteqrasiyas: Azerbaycan-Nato elaqeleri. Baku, 2011.p.31
619
228
ject provides reforms in defense sphere in Azerbaijan. Azerbaijan Republic also joined the
Euro-Atlantic Partnership Council of NATO formed in May, 1997.
The realization of PFP program began in 1996. In June 1995 C. Mackenzie, Deputy Commander-in-Chief of NATO forces in Europe visited Azerbaijan. In his meeting with the
Prezident of Azerbaijan Republic Haydar Aliyev he told that NATO could play an important role in the improvement of the Armed Forces of Azerbaijan. In this meeting the representative of NATO for the first time stressed the importance of liberation of the Azerbaijani
territories from occupation and establishment of peace in the region621 . The visit of General Secretary of NATO to Baku especially stimulated NATO-Azerbaijan relations and
NATO proved its strict intentions. On the eve of the visit H.Solana declared to the journalists that during the meeting with the President of Azerbaijan the investigation of solution
ways of the problem would be made efforts622 (21, 32). In November 1997, the President of
the Republic of Azerbaijan issued a decree "On the measures for strengthening cooperation
between the Republic of Azerbaijan and NATO". A commission of cooperation with NATO
attached to the President of Azerbaijan was established in conformity with this decree. The
commission is charged to coordinate the activities of respective ministries to draft a program in the framework of PFP. The Azerbaijani mission started its activity in NATO headquarters in Brussels. Azerbaijan got the observer status in the session of the Parliamentary
Assembly held in Poland in May 1999. In September of the same year, a platoon of the
Armed Forces of Azerbaijan started to take part in the peace-keeping activities in Kosovo
together with the NATO peacekeepers. But on November 19, 2001, the Republic of Azerbaijan became an associate member of the Parliamentary Assembly . NATO, Europe Union, including Europe Council the integration to cooperation structures and security of
Europe and TransAtlantic take the important place in the foreign policy of Azerbaijan. But
thinking that the process is going smoothly is not a real approach to the matter. First of all
in the inside of the Euro-Atlantic Unity the difference of position is enough. But the indications giving evidence of the weaking of this process are not observed yet623. Henri Kissinger
puts in a claim that the thought difference which shows itself in Euro-Atlantic Council is
known from the sources of transformation of USA-Europe relations. H. Kissinger doesnt
consider as a subjective factor the changing of geo-political interests of great countries of
Europe after the second World War624. According to his thought it is connected with the
reaction to four important changings: Disintegrating of Soviet Union, combining of Germany, tendency of looking at the foreign policy as a means of internal policy and increasing
of Europe self-cognize625. Adjoining other processes, causing such principal geo-political
changing of transformations which are going on in Europe-Atlantic space demands the resMadatova G. NATO partnership with Azerbaijan. Materials of the 9th Republic Students Scientific-Practical Conference
dedicated to the 20th anniversary of restoration of independence of Azerbaijan Republic// (December 3, 2011). Baku, 2011
622 Caferli V. Azerbaycann Qerb Tehlksizlik sistemine inteqrasiyas: Azerbaycan-Nato elaqeleri. Baku, 2011. p.32
623 . ? / . . . .. . .: , 2002, p.2262
624 Ibid, p.21
625 Ibid, p. 25
621
229
toration of structures of common security. H. Kissinger writes about it: It is riskful to

speak about the geo-political unity of Euro-Atlantic space in such situation. But in modern
historical situation the influence of countries situated in this space is very strong to the
world policy. That is why not only Azerbaijan but also in foreign policy of countries situated in different regions of the world the special attention is paid to relations with EuroAtlantic structures of security and co-operation. Today the strong Azerbaijan-USA cooperation is more important than it was usual. There are such great global problems that
not any country can manage it independently. Not depending on the branch of security,
energy or economical and democratic reforms the USA has historical opportunities to help
to achieve the transformation, geo-political and economical potential of our region. In order to realize this unusual duty both of countries needs each other. One of the directions of
the USA-Azerbaijan relations is the cooperation of OSCE. N. Mammedov writes about it:
In the direction of West adjoining USA the Europe countries also have great geopolitical
importance for Azerbaijan. Azerbaijan establishes relations with Europe both Europe Union and with different states in the formation of two-sided coorparation. These relations
began from the beginning of the first years of the independence.
During 1991-1992 years some European countries recognized Azerbaijan. In January 1992
Azerbaijan was accepted as a member for OSCE, but in March the group of Minsk was established. But then Azerbaijan had no official contracts about the cooperation with Europe
countries. The concrete directions of the cooperation were not definited. During 1991-1993
years due to the TACIS programme grants were distributed to Azerbaijan. In May 1993 the
project TRACECA which meant the assistance to the Commonwealth of Independent
States (CIS) was adopted. Two years later the programme INOGATE was accepted. This
programme intends the cooperation of EU, Turkey and CIS countries in the energy
sphere626.
USA and Azerbaijan have lasting cooperation in the important strategical energy projects
creating relations between West and East. Today about one million barrels of oil a day is
exported by the Baku-Tbilisi-Ceyhan pipeline. Having finished the building of South Caucasus Gas Pipeline Azerbaijan has began the new and more perspective level of development of energy section. Signing of Nabucco intergovernmental agreement was an important event of the new natural gaz corridor to Europe. Developing this opportunity and
coming to the agreement very fast about the problems of price, transit and etc. in order to
realize the South Corridor by Azerbaijan and Turkey are very important. Such kind of projects not only introduced the energy sources of Caspian Sea but also at the same time it
speeded up the development of Azerbaijan economics and ensured more independent economic future of Azerbaijan nation627
626
627
Mammedov N. Foreign policy: Realities and the prognosis. Baku, 2013, p.145-146
230
No doubt, one of the most important directions is the cooperation of World Bank which is
the main donor of USA with our country. None of the regional projects realizing in Azerbaijan pass without participation of this finance establishment. Now Azerbaijan is a member of thirty two international and regional Organizations: UN (in March, 1992), the Council of Europe (in March, 2001), OSCE (in Yanuary, 1992), CIS (in September, 1993), Organization of Islamic Conference (in 1992), Europe Unity (Agreement of Partnership and
Cooperation, 1996), ECO (1992), Black Sea Economical Cooperation Organization (1992),
European Bank for Reconstruction and Development (1992), World Bank (1992),
UNESCO, UNICEF, World Health Organization, The International Federation of Red
Cross and Red Crescent Societies (IFRCRC), International Criminal Police Organi-
zation, International Olympic Committee and etc628

One of the most important organizations in Azerbaijan is World Bank. From 1992
being independent Azerbaijan pays a great attention to this cooperation. With the
help of World Bank during the first years of its sovereignty Azerbaijan getting
grants for some important problems and strategic branches began to revive its
economy. In different branches such as from the branch of education till the irrigation system the young independent Republic supported by World Bank began to
see its favorable results. For different capacious and important projects from five
millions USA dollars till five hundred million USA dollars were asked to the Bank.
As it is known only the member countries use the credits of the World Bank. Credits are lasting and they are being given to the country for the need of the economical development programs629 (15,141).
According to the reports of the Azerbaijan National Bank in Azerbaijan the people who have less daily profit than 2, 5 dollars are called poor 630. But due to the
opinion of World Bank in 1999 the poverty border is 2.15 dollars631. During the beginning of the independence the half of the country populations living in poverty
made arrangements of bank cooperation with Azerbaijan. Because the main part of
the activity of the World Bank is to struggle with poverty. As in many countries of
the world in Azerbaijan the attention to ecology is also being increased. One of the
first prepared projects in this branch is Shahdag National Park financed by the
World Bank. The project is about to establish the national park consolidating the
reserves situated in Small Caucasus. To realize this project the World Bank spent
Memmedli . ABSH-n Cenubi Azerbaycanla bal plan var. Bizim yol qezeti, 12.6.2014.
Sulejmanov E. Azerbaijan-World Bank relations after independence.// Materials of the 9th Republic Students Scientific-Practical
Conference dedicated to the 20th anniversary of restoration of independence of Azerbaijan Republic// (December 3, 2011). Baku,
2011. p.141
630 Emiraslanov A. Azerbaycan Iqtisadiyyat ve Bazar Mnasibetleri, Baku, 1998.
631 World Bank, World Development Indicators, 2001, Washington D.C.: World Bank.
628
629
231
about ten-twelve million dollars. The World Bank took a tender in order to use the
water of Samur River providing the need of drinkable water of Baku and Sumgait
cities. The tender was won by the companies Azersutikinti and Azerenerjitikintigurashdirma. In order to realize this project the World Bank gave two millions
dollar credit. Together with the World Bank, Islam Development Bank and Kuwait
Development Bank the Alat-Gazimammad road got renewed with the program of
Reconstruction of Silk Way. In 1997 the World Bank opened 14.7 millions of dollars credit to privatize the area and improve the village fields 632. In order to give the
finance support of irrigation system development the World Bank decided to give
35 millions of dollar in credit to Azerbaijan. In the explanation of the bank for the
press it is informed that this project gave a chance to improve the irrigation system
of 56 thousand hectares in eleven regions of the Republic633.
At the same time in 2001 the World Bank gave 18 millions of dollars to the Project
of Education Reform of four years (18). With the help international and national
counselors during a year the Program of Education Reform and its component Project of Education Reform of three years was realized with the grant amounting 295
thousand of the USA dollars. Till 2008 from 5 millions of USA dollars given by the
World Bank only 79, 04 % (percents) was spent on, but 500 thousand of the USA
dollars from the presence portion of Azerbaijan Government 79, 28% (percents)
was spent on. Getting the favorable results after this cooperation there were negotiations to prepare the new reform project between Azerbaijan government and the
World Bank. As a result of the negotiations the ten years strategy of the education
reform has been compiled by the Ministry of Education, the priority directions have
been determined and the demanded finance has been prepared634. Azerbaijan has
already done the important activities in the branches of infrastructure and developing the regulation spheres of the country. These efforts made the country to win the
honors name First Reformer in 2009 in the Business Activity Report of the World
Bank. Azerbaijan also was the first country joining the Transparence Initiative in
Mineral Industry Branches determining the global standards in transparence
branch of oil, gas and mountain-mine industry. But one must do a lot to realize
these reform processes, to improve the business fields and to determine the demanded laws and institutions improving the life conditions of all citizens with oil
profits. The wish of joining World Trade Union pursued by Azerbaijan and supported by USA will be the fastest way to involve the international investors and use
Aliyeva M. "Heyat Seviyyesi ve Yoxsulluq Problemi", Azerbaycan qtisadiyyat, Baku, 2000.
Sulejmanov E. Azerbaijan-World Bank relations after independence.// Materials of the 9th Republic Students Scientific-Practical
Conference dedicated to the 20th anniversary of restoration of independence of Azerbaijan Republic// (December 3, 2011). Baku,
2011.p.145
634 Ibid, p.142
632
633
232
the foreign market advantages. At the same time the laws of World Trade Union
demand the business standards in the world view, transparence and a business
sphere not having the advantage for large and small establishments. It means
eliminating of corruption problem with serious efforts. In 2008 International
Transparency Organization in its report called Indicator of Corruption notes that
corruption is a serious problem in post-Soviet countries, including Azerbaijan. Being effective the corruption shows itself as a supplementary tax and influences to
the small business. It shakes the law and paralyzes the system of law. It steels the
profits of citizens from the economical increase. Unfortunately, the corruption is a
failure of a human nature in the world, including US. But the democratic government bears the responsibility for being undiscovered and unpunished for not giving
the opportunity causing all system failure635.
As it is known today Azerbaijan and USA take part as the strategic partners in the system
of the modern international relations. The relations between the countries rely on the mutual-beneficial cooperation and enrich with the new quality shades regularly. The strategical bases connected both of the countries to each other is the coordination of the national
interests system on the mutual-beneficial cooperations. It is not accidental that US Secretary of State John Kerry wrote to Azerbaijan President Ilham Aliyev in the congratulation
letter about the final investment decision on the second phase of the the natural gas production project Shahdeniz: Dear Mr.President, I congratulate you and the people of
Azerbaijan on the occasion of the final investment decision on the second phase of the
natural gas production project Shahdeniz. December 17 - the final investment decision
is the symbol of the important stage in the history of Azerbaijan. Azerbaijan taking the first
step towards the unification with Europe it becomes the reliable, new source of the world
energy resources and helps to ensure energy security of Europe. As a result of many years
of hard work the realization of South Gas Corridor will be useful for many consortium
partners and neighbours, as well as it will strengthem the independence of Azerbaijan. As
Azerbaijans vision to the future becomes a reality I promise you our help on behalf of the
USA636.
It is necessary to note that according to the strategical view with the President Ilham Aliyevs initiative the realization of South Gas Corridor project is very important for the world
and the region countries. The energy projects realized in our country open new opportunities not only for the regional cooperation, but also for the international cooperation and
influence affirmatively to all supporters to derive advantage from those projects.
Madatova G. NATO partnership with Azerbaijan. Materials of the 9th Republic Students Scientific-Practical Conference dedicated
to the 20th anniversary of restoration of independence of Azerbaijan Republic// (December 3, 2011). Baku, 2011.
635
636
233
The political will of Azerbaijan being the initiator of all great projects in the region played
an important role in the realization of the South Gas Corridor and the new route, first of
all, created great opportunities to diversify sources of gas supplies and to open new alternative routes. Appreciating the strategic importance of the project highly, strengthening
the cooperation in energy branch the President Ilham Aliyev initiated to establish the Advisory Council of Energy Ministers of the countries involved in order to realize Southern Gas
Corridor project637.
In order to take part at the first meeting of the Advisory Council of Energy Ministers of the
countries taking part in Southern Gas Corridor project in Baku the Special Envoy and Coordinator for International Energy Affairs of US State Department Amos Hokhstayn who
told in a press conference that it was a project that formed on the initiative of the Azerbaijani authorities and USA appreciates it very much. Recalling his visit to Azerbaijan a few
months ago A. Hokhstayn noted that their aim coming to Baku was to discuss any progress
and measures in the implementation of the corridor: This corridor is very important according to the energy security of Europe. The recent events happened in the world also
show that preserving, protecting and strengthening the security of Europe energy has become a very important issue. That is why we are in Azerbaijan and we have joined such a
meeting. I think that it is one more manifestation of the strong ties between the US and
Azerbaijan. USA and Azerbaijan are cooperating in different styles, but energy cooperation
is one of them ...638.
Speaking about the USA-Azerbaijan relations the cooperation in the humanitarian sphere
must not be forgotten. US officials have always praised the tolerance highly in our country.
It is clear that this issue is one of the priority directions in internal politics of our country.
Nasimi Agayev who was the Consul General of Azerbaijan in Los Angeles wrote in the article Religious tolerance: discovering a model that can work in the dangerous period published in the influential newspaper of US Congress Roll Call dated on January 5, 2015
about the historical tolerance traditions of Azerbaijan, the created life conditions of different religions in the country peacefully together which could be example for all countries in
the world, then he added that though recently the pessimism had enormously increased
about the future of relations among Islamic, Christian and Jewish religions in the background of the events happened in the Middle East the example of Azerbaijan shows its opposite. It is noted that the suitable condition where the atmosphere of peace and harmony
exist has been created in Azerbaijan by the leadership of the country: Azerbaijan is proud
of its religious diversity. Azerbaijan was the birthplace of one of the world's most ancient
Christian countries and the Christian community participated in the formation of Azerbaijan history for centuries... But almost 30 thousand Jewish community living with the
Christian and Muslim communities in Azerbaijan have been living for two thousand years.
Even when the Jews living in the surrounding regions of Azerbaijan were exposed to dan637
638
Bayramov V. Cenub qaz dehlizi layihesinin reallashmas strateji baxmdan mhm nem dashyr. Xalq qezeti, 14.02.2015.
Ibid
234
ger they had seen Azerbaijan as a safe place for themselves. During World War II the Jews
saved the lives from the fascism had taken refuge in Azerbaijan (28).
N.Agayev noted that when the hate among sects threatened the Middle East, Shiahs and
Sunnites in Azerbaijan live in mutual respect: Agitating the ancient tolerance traditions in
the country Azerbaijan state guidance has always rejected
radicalism, extremism and
hate among religions. The synagogues, mosques, churches were built and are being built
on the support of the Azerbaijan state expense. In particular, the new cultural centers for
different religions are being built, the state means are being divided to the institutions belonging to the three religions639.
Then the diplomat has written: The USA must also be interested in this successful example. Thus, Azerbaijan having the secular, tolerant and inclusive qualities plays a great role
for the region which has faced the crisis. During the discussions in the US Congress regarding the increasing threats in the region it would be useful to study the positive experience
of the countries such as Azerbaijan which promotes religious freedom and fights against
the extremism. Congress must support the tolerant and worldly friends of America, looking
through the harmony model of Azerbaijan religions as the working example it must call the
countries of the world to the application of this model640.
The geopolitical situation in the region forms the important component of the close ties
between our countries. It shows itself not only in the region, generally in the attitude to
Iran which is the main source of instability in the world. The expert on the Russian-Iranian
relations, the head of the Russia Center for the Study of Modern Iran Rajab Safarov commenting on the process in our region has said that one can also coordinate relations of the
official Baku to improve ties with the West, especially with the US the expansion of ties
with Iran. He has said that in order to solve the problem about the Iranian regime the official Washington must create the fifth column consisting of the Southern Azerbaijanians
and Azerbaijan Republic can help it in this work: Azerbaijanis has a state and it is very
favorable for the official Washington: to raise up rebellion in Tehran by the southern Azerbaijanis and to help them comprehensively, at last to promise them to join the Republic of
Azerbaijan. In their view, it will be a large, strong state situating in the area from the Caspian Sea to the Persian Gulf. Moreover, this government will be the second Turkish state in
the region after Turkey, in the Middle East641.
According to Safarovs words if we take into account the energy resources of Azerbaijan
and the size of the area where Azerbaijanis live in Iran, such state could become a strong
zzet . Azerbaycann msbet tecrbelerini yrenmek ABSH n faydal olard. Trend A, 6 yanvar, 2015.
Ibid
641 Memmedli . ABSH-n Cenubi Azerbaycanla bal plan var. Bizim yol qezeti, 12.6.2014.
639
640
235
player in the international arena: All my words are the theory prepared by Americans and
this theory is used as a means of strong pressure by the US administration against Iran642.
Literature:
Shahda Milli Parkna Diqqet Artrlr, 525-ci Qezet, 25 May 2002.
About the measures of expansion of partnered relations between the Republic of Azerbaijan
and USA. The order of the President of Azerbaijan Republic. Baku city, September 2,
1997, 657. URL: http://e-qanun.az/files/framework/data/4/f_4250.htm
Aliyeva M. "Heyat Seviyyesi ve Yoxsulluq Problemi", Azerbaycan qtisadiyyat, Baku, 2000.
Bayraml N. Azerbaycanla elaqeler ABSH n strateji ehemiyyet dashyr. Yeni
Azerbaycan qezeti, 2014, 9 yanvar.
Bayramov V. Cenub qaz dehlizi layihesinin reallashmas strateji baxmdan mhm nem
dashyr. Xalq qezeti, 14.02.2015.
Brzezinski Z. The Grand Chessboard. American Primacy and Its Geostrategic Imperatives,
Basic Books, NY, 1997.
Caferli V. Azerbaycann Qerb Tehlksizlik sistemine inteqrasiyas: Azerbaycan-Nato
elaqeleri. Baku, 2011.
Cohen A. The Secretarys Daunting Agenda // The National Interest. June 4, 2012
http://nationalinterest.org/commentary/the-secretarysdaunting-agenda-7001.
Emiraslanov A. Azerbaycan Iqtisadiyyat ve Bazar Mnasibetleri, Baku, 1998.
From the conversation at the meeting with the President of the Republic of Azerbaijan
Heydar Aliyev and the representative delegation with the privite councillor of the President
of the United States and the Secretary of State, the ambassador Richard Morningstar Baku, December 16, 1998, "Heydar Aliyevs heritage" International Electronic Library, URL:
Http: //library.aliyev-heritage.org/ az/86084273.html.
Gurgen, E., H. Snoek, J. Craig, J. McHugh, I. Izvorski and R. Van Rooden Economic Reforms in Kazakhstan, Kyrgyz Republic, Tajikistan, Turkmenistan, and Uzbekistan, International Monetary Fund Occasional Paper 183, 1999, Washington D.C.: IMF.
http://diaspora.gov.az/index.php?options=content&id=644
Inozemtsev V.L. The great politics in little places: Azerbaycann geosiyasi arenada gelecek
planlar nedir? // Azerbaijan Focus, 2009, 1(1), s. 59-70.
zzet . Azerbaycann msbet tecrbelerini yrenmek ABSH n faydal olard. Trend
A, 6 yanvar, 2015.
Madatova G. NATO partnership with Azerbaijan. Materials of the 9th Republic Students
Scientific-Practical Conference dedicated to the 20th anniversary of restoration of
independence of Azerbaijan Republic// (December 3, 2011). Baku, 2011.
642
Ibid
236
Mammedov N. About the main directions of Azerbaijan foreign policy // Azerbaijan Focus,
2010, 2 (2), s. 17-50.
Mammedov N. Foreign policy: Realities and the prognosis. Baku, 2013, s. 262.
Memmedli . ABSH-n Cenubi Azerbaycanla bal plan var. Bizim yol qezeti, 12.6.2014.
Sevdimov T. The resons of crisis between Russia and Georgia. Bak, 2013. 506 s.
Sulejmanov E. Azerbaijan-World Bank relations after independence.// Materials of the 9th
Republic Students Scientific-Practical Conference dedicated to the 20th anniversary of
restoration of independence of Azerbaijan Republic// (December 3, 2011). Baku, 2011.
The President of Azerbaijan Republic Heydar Aliyevs statement about the mutual
protection and encouragement of capital invests and the joint statement about AmericaAzerbaijan relatons in the ceremony of signing the contract between the governments of
Azerbaijan Republic and USA/ Azerbaijan newspaper, August 3, 1997.
William C. Burns. Azerbaijan US relations. Goergtown University, Washington city, 18
September, 2009.
World Bank, World Development Indicators, 2001, Washington D.C.: World Bank.
., . . : XXI / , . : : . -, 2007, 303 .
/
Regnum, 2 2012. URL: http://www.regnum.su/news/1537836.html.
/ : .,
. , , 1994, 174 .
.. XXI ? // , 2011, 6, c. 17-27.
. ? / . . . ..
. .: , 2002, 352 .
. :
// ,
2011, 6, c. 157-167.
.
, 7 2012. URL:
http://kremlin.ru/acts/15256.
237

DOI: 10.989765/2016.5.2.89
Homosexuality and Child Custody through the Lenses

of Law: Between Tradition and Fundamental Rights
Denise Amram*
In the course of child custody disputes, the application of the principle of nondiscrimination concerning parents and their sexual orientation was internationally
recognised by the decision in Salgueiro da Silva Mouta v. Portugal.643 However, it
does not yet seem to have been universally accepted, due largely to considerations
regarding common morals,644 where some individuals still have difficulty in admitting that the capacity of a person to be a parent is not determined by his or her sexual
inclination, but rather by his or her parental skills. The aim of this paper is to verify
the impact that morality has on the principle of non-discrimination, and on the principle of the best interest of the child, which is, instead, universally accepted as the
main guideline in deciding child custody disputes. Thus, comparing some international trends with Italian case law, the author explores whether, in Italy as well as in
other European legal systems, the contrast between legal issues and ethical values
can be solved in favour of an evolution of the traditional meaning of the family.
1. Introduction
Values that define the personality of an individual first develop within the family environment. Anthropologists and sociologists645 have amply demonstrated that the family is more
*
PhD Candidate at Scuola Superiore SantAnna, Pisa - Italy-, Scientific Collaborator of Lider-Lab (www.liderlab.sssup.it), Scuola Superiore SantAnna, Pisa - Italy, email: d.amram@sssup.it.
643
ECHR, 21st Dec. 1999, case Salgueiro da Silva Mouta v. Portugal, Hum. Rts. Case Dig., 10, 307-309 (1999) and Am. J. Intl L.,
95, 422-430 (2001).
644
In this paper, the expression common morals includes cultural, religious and social values.
645
Paola Ronfani, Il diritto e le nuove famiglie: una lettura sociologica di un rapporto complesso, Min. e giust., Rome, 2, 13-26
(2008); Maurice Godelier, Mtamorphoses de la parent, d. Fayard (2005); Agns Martial, Lanthropologie de la parent face aux
transitions familiales contemporaines: des interrogations en suspens, La Dcouverte - Travail, genre et socits, 158-163 (2005);
238
suitable than any other social structure to balance the contrasting values of different communities.646 Ethic, religious, and cultural values are inherent to the concept of the family
while it reflects the social system at any given historical moment.647 In fact, the family
has always originated from a confrontation between traditional values at any given moment in time with alternative values searching for affirmation in the social context.
Social sciences influence legal studies, because they provide interpretative instruments
contributing to the construction of definitions, which are relevant to providing for legal
solutions and, simultaneously, linking individuals and their relationships with the social
environment.648 As a result, the western649 family has experienced both the rise and the fall
of some core principles, a phenomenon that can be attributed to the development of social
habits, over centuries, which seem to have isolated family law from private law. As an example, it is worth mentioning both the decline of the concept of the indissolubility of marriage, the Immunity Doctrine,650 and the affirmation in the Italian system - of moral
and legal equality between spouses and between legitimate and natural children.651
Within the context of family law, rights solicitations have developed (and are developing)
into a larger social and legal process involving the promotion of civil and human rights. In
this process, the affirmation of the principle of non-discrimination in the eyes of supranational institutions and European Union Law has played an important role. Within the EC
framework, free movement inferred consequences in the debate about the evolution of the
Grard Lucas, Quelques pralables ltude des parentalits homosexuelles, Revue franaise de psychanalyse, Vol- 67, 229-240,
(2003).
646
The topic has been first apprehended by social science. On these issues, see Douglas Laycock- Anthony R. Picarello Robin
Fretwell Wilson eds, Same-sex marriage and religious liberty: emerging conflicts, Lanham, Rowman & Littlefield Publishers (2008).
Interdisciplinary legal scholars have further approached the argument through the lenses of other fields: see e.g. Nocholas
Kasirer, The dance is one, Law and Literature, Los Angeles, Vol. 20, No. 1, 6988 (2008).
647
Masha Antokolskaia, Family law and national culture. Arguing against the cultural contraints arguments, in K. Boele Woelki,
Debates in Family Law around the Globe at the Dawn of the 21st century, Intersentia, 37-51 (2009); Marie C. Celerier, La famille
homoparentale: continuit ou rupture?, Champ psychosomatique, n. 38, 167-170 (2005); Franoise Hritier, Quel sens donner aux
notions de couple et de mariage? A la lumiere de lantropologie, Information sociales, n. 122, 6-15 (2005).
648
See Norberto Bobbio, Let dei diritti, Einaudi (1990).
649
In this paper, western refers to the western culture and to the so-called Jewish and Christian roots of Europe. During the
draft of the Treaty establishing a Constitution for Europe, an important debate arose regarding the opportunity of including those
values in the Preamble. Even though no mention about God or Religion has been made in the official texts, we cannot avoid referring to ethical values deriving from the Christian culture in a matter as tricky as the one we are going to analyse. See Salvatore
Patti, Tradizione civilistica e codificazioni europee, Riv. dir. civ., Padova, pp. 521-531 (2004); Lorenzo Leuzzi Cesare Mirabelli Ed.,
Verso una Costituzione europea - Atti del Convegno Europeo di Studio, Roma 20-23 giugno 2003, Marco Editore, II (2003); Giovanni
Reale, Radici culturali e spirituali dellEuropa Per una rinascita delluomo europeo, Raffaello Cortina Editore (2003); Pontifical
Lateran University, The common Christian roots of the European Nations: an international colloquium in the Vatican, Le Monnier
(2002); Mary A. Perkins, Christendom and European Identity The Legacy of a Grand Narrative since 1789, Walter de Gruyter
(2004).
650
The Immunity Doctrine meant that people belonging to the same family could not sue each other. An important Italian
scholar compared the Family to an island that the sea of the law can only lap and never overstep. Carlo Arturo Jemolo, La famiglia
e il diritto, Ann. Sen. Giur. Universit di Catania, 1948, III, Italy.
651
Italian Constitution articles 29 and 30. See also Philippe Malaurie, Hugues Fulchiron, La Famille, Paris (2009); Stephen M.
Cretney, Judith Masson, Rebecca Bailey-Harris, Principles of family law, Sweet & Maxwell (2003); Katharina Boele.-Woelki, Brente
Brat, Ian Curry-Sumner eds., European Family Law in Action, I II- III, Intersentia (2003); Jacques Massip, George Morin, Jean-Luc
Aubert, La rforme de la filiation, 3 Ed Defrnois (1976); Jean Carbonnier, Droit civil, tome 2, La famille, lenfant, le couple, Paris
(2002); Gillian Douglas, An introduction to family law, Oxford (2001). In a comparative perspective see Bea Verschraegen, v. Divorce, in International Encyclopedia of Comparative Law, Vol. 4, chapter 5.
239
concept of the family and its different aspects within Member States.652 In fact, free movement could be limited only by objective considerations and in proportion to the legitimate
aim being pursued, and in order to facilitate it, other fundamental rights relating to the
family have been recognised. Indeed in the case Grunkin and Paul,653 the European Court
of Justice (ECJ) affirmed that Article 18 EC precludes the authorities of a Member State,
in applying national law, from refusing to recognise a childs surname, as determined and
registered in a second Member State in which the child who, like his parents, has only
the nationality of the first Member State was born and has been resident since birth.
The recent but not yet entirely developed process of the harmonisation of European Family
Law arises from the possibility of affirming the very same rights in front of a supranational
court/institution denied by the legal system of ones country. This supranational dimension is in reality the driving force of legal innovation on these issues across Europe. However, this process has evolved in the context of free movement of goods, services, people
(including people who migrate with their cultural background, values and ideas). Nonetheless, the growing recognition of human rights in Community Law and in particular in the
European Convention on Human Rights (ECHR) - is capable of reaching and indeed overtaking the limits of Community competition. In other words, the Europeanization process,
as a consequence of globalisation, has also reaffirmed fundamental rights in decisions of
the ECJ and the ECtHR.654
Likewise, other Member States have not pursued significant changes to the concept of the
family: the actual debate in Italy arises from the acknowledgement of partnerships655
originally intended exclusively for traditional families. On the one hand, this extension involves all the values belonging to the traditional western model of heterosexual couples
and on the other hand the issue of the violation of the non-discrimination principle based
The ECJ and ECtHR assume a leading role, since nowadays they are the best equipped instruments to reflect the needs,
sensitivity and habits of member citizens. See Michael Bogdan, Registred partnerships and EC Law, in K. Boele-Woellki A. Fuchs
ed., Legal recognition of same sex couple in Europe, Intersentia, 171-177 (2003) and Helen Toner, Immigration Rights of Same-sex
couples in EC Law, ibidem, 178-193 and Bea Verschraengen, The right to private life and family life, the right to marry and to found
a family, and the prohibition of discrimination, ibidem, 194-211; Patrizia De Cesari ed., Persona e Famiglia - Trattato di diritto
privato dellUnione Europea, Giappichelli (2008).
653
ECJ, 14th Oct. 2008, Grunkin-Paul, case C-353/06, available on the website http://eur-lex.europa.eu. See also Matthias Lehmann, Whats in a name? Grunkin-Paul and beyond, in Yearbook of Private International Law, 10, 135-164 (2008). The case concerns a child who was born in Denmark and registered in accordance with Danish law under the compound surname GrunkinPaul combining the name of his father and that of his mother, even though he was of German nationality. After moving to Germany, German authorities refused to recognise his surname as it had been determined in Denmark, since Art. 10 EGBGB establishes
that the name of a person is subject to the law of his or her nationality.
654
For a detailed discussion concerning the European process of the harmonisation of Family Law, see Katharina BoeleWoelki, Brente Brat, Ian Curry-Sumner I. eds., European Family Law in Action, I II- III, Intersentia (2003). In fact, in 2001 an
international group of scholars established the Commission on European Family Law (CEFL), who aimed to launch a pioneering
theoretical and practical exercise in relation to the harmonisation of family law in Europe. See also Maria C. Andrini, Un nuovo
diritto di famiglia europeo, Cedam, (2007) and Laura Tomasi, La tutela degli status familiari nel diritto dellunione europea Tra
mercato interno e spazio di libert, sicurezza e giustizia, Cedam, (2007)
655
In Italy there is no legislation related to heterosexual couples, even if the EU legislator has referred to this principle in a
number of persuasive acts and in the Directive 2000/78/CE, establishing a general framework for equal treatment in employment and occupation. See, Mark Bell, We are Family? Same-sex Partners and EU Migration Law, Maastricht J. of Eur. Comp. L., 335
(2002). See also 6 The Principle of non-discrimination.
652
240
on sexual orientation. The Italian debate656 challenges the very notion of the family that
has been closely linked to reproduction, reflecting the traditional question surrounding the
homosexual family debate. The problem therefore emerges clearly: which are the legal instruments capable of justifying an expansion and revision of the family concept in Italy?
How could fundamental rights and the removal of social barriers allow a similar process?
The question can be contemplated by considering two variables. The first one concerns relationships between partners and the State, the second deals with the relationship between
a homosexual parent and his or her child(ren). Normally, the debate about homosexual
marriage (which, where it is provided for, has contributed to an evolution of a new concept
of the family, also thanks to the higher consideration that the principle of equalityby
which each individual is free to marryhas received through article 9 of The Charter of
Fundamental Rights of the EU,657 Nice, 2000)658 and the debate regarding the acknowledgement of unions, without the recognition of marital status,659 are argued under the first
variable. In contrast, the discussion about the possibility for a single homosexual or even
homosexual couples to be entitled, or not, to parental rights, by means of either adoption
or assisted procreation660 by one of the two partners and an adoption or custody order by
the other one, is included in the second variable.
Custody and care of children has always been a challenging problem in all legal systems
that have decided to regulate same-sex partnership. In any case, the connection between
the two categories of matters related to homosexuality and filiation is often reduced to an
ethical and moral debate concerning the granting of shared custody of a child to a homosexual parent. This is when a heterosexual family (married or not) breaks down because
one of the two parents reveals their homosexual orientation and the relationship between
parents and children has to be defined or assessed by judges. The subject of homosexuality
and child custody demonstrates the effects of discrimination based on sexual orientation in
everyday life and, in particular, towards relationships between the homosexual parent and
his or her child(ren).
In fact, if parental rights were granted to homosexuals, traditional values would not only
change; thanks to the full integration in society of people of all sexual orientations, all
prejudices (and every form of discrimination) typical of modern western society would disSee Francesco D. Busnelli, La famiglia e larcipelago familiare, Rivista di diritto civile, 509 529 (2002), Cesare M. Bianca,
Dove va il diritto di famiglia?, Familia, 3-10 (2001), Gilda Ferrando, Il matrimonio gay, il giudice e il legislatore, Resp. civ. prev.,
2344 2353 (2008).
657
After Lisbona Treaty, which has amended article 6 of the EU Treaty, the Nizza Charter is now binding.
658
In fact marriage from a traditional point of view must be related to reproduction.
659
The matter effects also free movement and immigration policies: e.g. in a recent decision, the Italian Supreme Court n.
6441/2009 (Cass. 17th Mar. 2009, Fam. e Dir., 5, 454 (2009), commented by Maria Acierno) denied family reunification to a gay
registered couple from New Zealand. See also Gilda Ferrando, Il contributo della Corte Europea dei diritti delluomo nellevoluzione
del diritto di famiglia, Nuova Giur. Civ. Comm., 263 (2005); Vladimiro Zagrebelsky, Famiglia e vita famigliare nella Convenzione
Europea dei diritti umani, in Maria C. Andrini ed, Un nuovo diritto di famiglia europeo, Cedam, 115 (2007).
660
Unmarried womans artificial insemination is legal in the UK and in some states of USA, such as California, Colorado, Illinois, New Jersey, New Mexico, Oregon, Washington, Wisconsin and Wyoming.
656
241
appear.661 In this perspective, the family can be defined as a place, chosen by individuals,
where they can express feelings and live together, support each other and, also, conceive
and/or raise children.662
Our aim is to investigate whether the time has come to decide that in some instances several universal principles should be affirmed on a global level, even if such principles could
undermine the identifying values rooted in the sense of belonging to a given nation.663 To
this end, this paper introduces in the first part the main ethical and legal issues emanating
from the theme of homosexuality and the family. The second part consists of a more specific juridical analysis of the relationships between homosexual parents and their children,
focusing on the three different approaches elaborated by US Courts. From the comparative
analysis of supranational and some national case law and legislation, two main relevant
ways capable of solving, from a legal point of view, the ethical questions in cases concerning children and homosexual parents become evident: the first one is related to the pursuit
of the best interest of the child for custody which is discussed in the third and in fourth
section of the paper and; the second solution, to be analysed in the final section of this
paper, concerns the application of the principle of non-discrimination based on sexual orientation.
1.
Homosexuality and the Family: An Unresolved Problem in Europe
In the past,664 homosexuality was considered in western society as a form of perversion or

a mental disease, and was often put in the same category as prostitution, paedophilia and
pederasty.665 In fact, societys repulsion of homosexuality caused an increase of homophobic conduct, ranging from simple embarrassment at the sight of homosexual people to acIn this perspective, it is useful to mention the system approach in Quebec to homosexuality and family, where homosexual
people obtained the acknowledgement of their parental rights (custody and visitation rights as well as suitability to adopt) two
years before the affirmation of the right to get married.
See Court of Appeal of Qubec, 19th Mar. 2004, Catholic Civil Rights League c/ Hendricks, available on the website
www.canlii.org which stated that there is no longer any obstacle to the solemnization of the respondents marriage by a competent officer, and the order the respondents seek to that effect will be issued. Accordingly, after publication of the notice provided
for in article 368 of the Civil Code of Quebec and in the absence of valid opposition, since homosexuality is not a valid ground of
opposition, the respondents marriage may be solemnized in accordance with the law. Susana Navas Navarro ed., Matrimonio
homosexual y adopcon Perspectiva nacional e internacional, DBT (2006). See also footnote 37. However, in Belgium, for example, the institute of marriage was opened up to include homosexuals in 2003 whereas only three years later did the law grant
parental rights to homosexual couples.
662
Franois Hritier, Quel sens donner aux notions de couple et de mariage? la lumiere de lanthropologie, Information sociales,
n. 122, 6-15 (2005).
663
Barbara Henry, Identit territoriali nella societ globale, ETS (2005) and Barbara Henri Anna Loretoni eds, The Emerging
European Union Identity, Citizenship, Rights, ETS (2004).
664
For an exemplification of Homosexual persecutions since 776 B.C. to XIX century, see Luis Crompton, Homosexuality and
Civilization, Harv. Un. Press (2003).
665
Only in 1973 was homosexuality removed from the Diagnostic And Statistical Manual of Mental Disorders (DSM) by the
American Psychiatric Association and in 1993 by the World Health Organization (The ICD-10 Classification of Mental and Behavioural Disorders: diagnostic criteria for research, Ginevra) See John C. Gonsiorek, The empirical basis for the demise of the illness
model of homosexuality, in John C. Gonsiorek, James D. Weinrich (Eds), Homosexuality: Research Implications for Public Policy, Sage
Publications, 115-136 (1991); Bernard F. Riess, Psychological tests in homosexuality, J. Macmor ed., Homosexual Behavior: A Modern Appraisal, Basic Books, 298-311 (1980); David S. Dooley, Immoral because theyre bad, Bad because theyre Wrong Sexual
Orientation and Presumptions of Parental Unfitness in Custody Disputes, California Western Law Review, San Diego, 26, 393 (1990).
661
242
tual persecution.666 More recently, medical and psychological contributions have managed
to separate homosexuality from physical sexual acts, allowing homosexuality to develop
deeper connotations, such as emotions, feelings and relational attitudes, in terms of morale.667 Moreover, the de-criminalisation668 of sodomy and the progressive recognition of
homosexuals individual rights have laid the foundations for the acknowledgement of homosexual couples rights.669
Despite the more positive connotations regarding homosexuality that are emerging from
arguments evident in case law, the Sacra Romana Rota in 1994 defined homosexuality as
an abnormal structure of personality counter to the goals of marriage itself because it
prevents the affected from practising marital love in order to procreate, to use marriage to
reach this fine modo humano, to preserve conjugal faithfulness as exclusively binding
and to establish a lifelong union also aimed at mutual support.670 In the same year in
which the Sacra Romana Rota published this statement, the European Parliament
adopted a Resolution on equal rights for gays and lesbians within the EC,671 asking the
Commission to issue a recommendation with the aim of passing legislation to provide for
homosexual persons access to marriage or an equivalent legal framework, to allow for the
adoption and fostering of children and to guarantee to one-parent families, unmarried
couples and same-sex couples rights equal to those enjoyed by traditional couples and
families, particularly as regard to tax law, pecuniary rights and social rights. In the 16
years that followed, various suggestions aimed at abolishing discrimination672 were made.
Although and paradoxically the Netherlands, Belgium, Spain, Norway and Sweden are
Homosexuality has been illegal for a long time in many jurisdictions, for example, in the US until 2003, see the U.S. Supreme
Courts decision in Lawrence v. Texas, 26th Jun. 2003, 123 S. Ct. 2472; 156 L. Ed. 2d 508. According to the Court the Texas antisodomy law (Tex. Penal Code 21.06[a], 2003) and all other anti-sodomy laws violated the Due Process Clause of the 14th
Amendment of the U.S. Constitution and for this reason they were held invalid. In Europe, much of the legislation banning homosexuality was considered under the ECHR, see for example, the English case, ECtHR, 22nd Oct. 1981, Dudgeon v. RU, S. A, n 45 also
available in Cahiers de Droit Europen, 1982, 221, commented by Grard Cohen-Jonathan; Annuaire franais de droit international,
1982, 504, commented by Robert Pelloux. See also ECtHR, 26th October 1988, Norris v. Irland, S. A, n 152 concerning Irelands
ban on homosexual acts and, for the Cyprus experience, see ECtHR 22nd April 1993, Modinos v. Cyprus, S. A, n 259.
667
John C. Gonsiorek, Results of psychological testing on homosexual populations, in William Paul- James D. Weinrich - John C.
Gonsiorek- Mary E. Hotvedt (eds), Homosexuality. Social, Psychological and Biological Issues, Sage Publications, 71-80 (1982); see
also Gabriele Prati, Luca Pietrantoni, Sviluppo e omogenitorialit: una rassegna di studi che hanno confrontato famiglie omosessuali
ed eterosessuali, in Riv. Sper. Freniatria, 2, 71 (2008).
668
For example, homosexual acts were decriminalised in Poland in 1932, Denmark in 1933, Sweden in 1944, in the United
Kingdom in 1967 and, more recently, in Texas in 2003 (see footnote 43) and in India in 2009.
669
Vittoria Barsotti, Privacy e orientamento sessuale una storia Americana, Giappichelli (2005).
670
Sacra Romana Rota, 19th Dec. 1994, Ius Ecclesiae, 1996, 601. Authors translation.
671
Resolution on equal rights for homosexuals and lesbians in the EC, 8 th Feb. 1994, in Official J. of the European Communities,
C 61, 28.2.1994, 40.
672
As an example the Resolution on the Respect for Human Rights in European Union for 1998-1999 adopted by the European Parliament, on 16th March 2000, asked member states to guarantee one-parent families, unmarried couples and same-sex
couples rights equal to those enjoyed by traditional couples and families, particularly as regards to tax law, pecuniary rights and
social rights. Moreover, at 57, the European Parliament notes with satisfaction that, in a very large number of Member States,
there is growing legal recognition for extramarital cohabitation, irrespective of gender; calls on the Member States - if they have not
already done so - to amend their legislation recognising registered partnerships of persons of the same sex and assigning them the
same rights and obligations as exist for registered partnerships between men and women; calls on those States which have not yet
granted legal recognition to amend their legislation to grant legal recognition of extramarital cohabitation, irrespective of gender;
considers, therefore, that rapid progress should be made with mutual recognition of the different legally recognised non-marital
modes of cohabitation and legal marriages between persons of the same sex in the EU.
666
243
celebrating their first same-sex marriages, the data concerning common feelings and
thoughts is not actually encouraging:673 over 72% of Italians and 50% of Europeans interviewed continue to perceive substantial discrimination as far as sexual orientation is concerned.
In Italy, the Corte Costituzionale (Constitutional Court) decided674 an issued raised by
theTribunale di Venezia on 3 April 2009675 and the Corte di Appello di Trieste on 20 July
2009676 regarding the constitutional legitimacy of some articles of the Italian Civil Code,677
especially those concerning the prohibition of same-sex couples to marry. The Court stated
that it has no jurisdiction in the introduction of same-sex marriage because the legislator
has the power to decide if and in which terms homosexual unions, which are included in
the concept of social formation contained in article 2 of the Italian Constitution, should be
protected. Even though the Constitutional Court did not recognise same-sex marriage, the
acknowledgement that homosexual couples came within the scope of social formations,
according to which people can realise their personality, constitutes an important step in
the extension of the definition of the family, especially in a country such as Italy, where the
affirmation of the rights of homosexual couples faces many obstacles.678 Although this decision is limited to the debate about the matrimonial rights of homosexual couples, another
important aspect, which must also be considered, concerns filiation679 relationships.680
In Europe the question surrounding adoption by homosexual couples remains controversial, in spite of hopes for a harmonised solution proposed by the European Convention on
the Adoption of Children.681 In fact, according to its revised version signed in Strasbourg
on 27h November 2008, the discussion is still open. As far as the requirements needed by
petitioners are concerned and according to art. 7, par.2, the Convention gives each State
the possibility to choose whether or not to grant the effects of the Convention to same-sex
See the Eurobarometer 2008 Report on Discrimination in the European Union, available online at:
http://ec.europa.eu/public_opinion/archives/flash_arch_en.htm.
674
C. Cost., ord. 15th April 2010, available in the website www.cortecostituzionale.it.
675
Tribunale di Venezia, 3rd Apr. 2009, Famiglia Min., Luglio, 18-22 (2009) and Fam. dir., 82 (2009).
676
Corte dAppello di Trento, 20th Jul. 2009, and then Tribunale di Ferrara, 14th Dec. 2009, www.personaedanno.it; see also
Corte dAppello di Firenze, 30th Jun. 2008 and Corte dAppello di Roma, 13th Jul. 2006, Foro it., I, 3695 (2008) case note by Francesco Dal Canto.
677
In particular, Articles 93, 96, 98, 107, 108, 143, 143 bis and 156 bis of the Italian Civil Code.
678
Gilda Ferrando, Il matrimonio gay, il giudice, il legislatore, Responsabilit civile e previdenza, 2344 (2008) and Francesco
Bilotta, Matrimonio (gay) allitaliana, Nuova Giur. Civ. Com., I, 91 (2006).
679
In order to understand the extent of the discussion concerning joint custody and parental responsibilities of homosexuals
we cannot avoid mentioning the age-old question of adoption by either same sex couples or single homosexuals.
680
See art. 115 Civil Code of Quebec that extends full parenting rights to lesbian and gay couples after the amendment was
unanimously and without abstentions voted into law by the Quebec National Assembly in 2002: Where the parents are of the
same sex, they are designated as the mothers or fathers of the child, as the case may be. See also art. 578.1 relating to adoption
by homosexual couples: If the parents of an adopted child are of the same sex and where different rights and obligations are
assigned by law to the father and to the mother, the parent who is biologically related to the child has the rights and obligations
assigned to the father in the case of a male couple and those assigned to the mother in the case of a female couple. The adoptive
parent has the rights and obligations assigned by law to the other parent. If neither parent is biologically related to the child, the
rights and obligations of each parent are determined in the adoption judgment. See Mireille D. Castelli Dominique Goubau, Le
droit de la famille au Qubec, 5 ed, Les presses de luniversit Laval (2005).
681
European Convention on the Adoption of Children, available online at: http://conventions.coe.int.
673
244
couples who are married to each other or who have entered into a registered partnership
together and to the different sex couples and same sex couples who are living together in
a stable relationship.
The cautious perspective of the Convention of Strasbourg stems from a decision of the
ECtHR682 in which it was established that in a State recognising adoption by a single parent
the refusal by the authorities to grant adoption to a homosexual petitioner (after having
verified his or her educational and human fitness) based solely on his sexual orientation683
leads to discrimination which cannot be justified only on the basis of the absence of a father figure for the child. The process of harmonisation has been suspended in favour of a
wider freedom for individual States in deciding whether or not to permit adoption by a single parent. It can therefore be assumed that many nations in Europe are hesitant about accepting a widened notion of the family, similar to that accepted in The Netherlands and
Sweden in 2001 and 2002 respectively by providing for same-sex couple adoption.684
Elsewhere and by comparison, in certain American States (Massachusetts, Vermont, New
York and in the District of Columbia), co-parent adoptions where the minor is the natural or adoptive child of one of the partners and he or she establishes a parental relationship
with the other partner are clearly permitted, while in other States, such as New Jersey, it
is even possible to adopt a child not related to the family. These are called stranger adoptions.685
2.
Relationships between Homosexual Parents and Children
As far as the evaluation of the educational fitness of homosexual parents is concerned,

Europe and the USA have taken the same steps, even though their primary agendas differed to some extent. In fact, before referring to the distinction between homosexual and
heterosexual people as a choice related to private life, some states had given sexual orientation different levels of importance.686 In the USA, the common law system has facilitated
ECtHR, 22nd Jan. 2008, E.B v. France, case 43546/02, Fam. e Dir, Milano, 221 (2008) and Actualit Juridique Famille, 118
(2008).
683
According to the decision the woman doesnt (didnt) fulfil enough guarantees from an educational, psychological and
familial point of view.
684
For The Netherlands, see 1st Apr. 2001 Act; for Sweden, see the Ministry of Justices report about Homosexual partnership
and adoption, available at www.riksdagen.se in which Swedish Government explains the reasons for the 6 th Jun. 2002 Act. See
also the EFL Commission, in looking for a common core in European Family Law, stated, concerning same-sex adoption, that it is
not possible to find a common core but in the states which allowed it, it seems to be the only way for a parents partner to acquire full parental responsibilities jointly with the childs parent, Katharina Boele-Woelki et al. eds, Principles of European Family
Law regarding Parental Responsibilities, Intersentia, 47 (2007).
685
See for example, Cox v. Florida Dept of Health & Rehabilitative Servs., 656 So. 2D 902, 903 (Fla, 1995); M.M.D. v. B.H.M., 662
A.2d 837, pp. 857-861 (D.C. 1995). See also Arthur S. Leonard, Paul Finkelman eds, Homosexuality and the Constitution, Taylor &
Francis (1997).
686
It is important to stress that, in the last 10 years both ECtHR (Salgueiro da Silva Mouta c/ Portugal) and the Supreme Court
of U.S. (Lawrence v. Texas), have tackled homosexuality highlighting the importance of privacy with respect to personal liberty
and the significance of the home as a place of safety from the omnipresence of the state. Ben C. Morgan, Adopting Lawrence: Lawrence v. Texas and discriminatory adoption laws, Emory L. J., Atlanta, 57, 1491-1531 (2004).
682
245
an elaboration by the courts of three different approaches relating to the matter of shared
custody of children in cases concerning homosexual parents. A comparative analysis of the
US Courts approaches, concentrating, in particular, at instances where European legal systems analysed differently or offered similar solutions, allows us to conclude that each different approach represents one more step towards the construction of a novel system of
values within familial relationships.
Step 1: The Rejection of the Family - Homosexuality Combination
The early decisions rejected: i) petitions of adoption issued by homosexual couples, ii)
child custody claims filed by the biological parent and iii) instances of foster custody687 by
the homosexual partner of the biological parent. Those decisions were based on the concept of homosexuality as a disease or a psychological deviance.688 This is known as the per
se approach,689 developed in case law, through which it is possible to grant child custody
to a homosexual parent only if he or she avoids living such an alternative lifestyle and if he
or she creates a healthy and traditional environment where the child can grow up. The
highly discriminatory nature of these kinds of decisions is due to the fact that homosexuality is banned a priori with no recognition of the actual facts of the case, nor of actual family
bonds and feelings among the individuals involved.
Step 2: The Middle-ground Approach
The second step in the USA is characterised by the rejection of custody or adoption petitions based on the best interest of the child.690 In these types of cases, homosexuality is not
viewed as a disease or a perversity, but instead doubts are raised that the best interests of
children could be impaired by raising them in these non-traditional families. Such decisions are often accompanied by the perception that adoption or custody petitions are promoted in order to satisfy the homosexuals egoistic desire to become parents, even if they
are not able to ensure that the child grows up in a stable environment which facilitates the
development of his or her personality, while that should be the first priority at all times.691
Foster-custody consists of the enjoyment of parental rights and duties upon the biological child of each partner.
Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, Indiana L. J., 71, 623-671
(1996); Elizabeth E. Bosquet, Contextualizing and analysing Alabamas Approach to Gay and Lesbian Custody Rights, Alabama L.
Rev., 1625-1649 (2000).
689
In Kentucky, Mississippi, Missouri, Nevada, North Carolina, Tennessee and Virginia courts follow the per se approach. Some
cases, in particular, are remarkable, such as S v. S., 608 S.W.2d 64 (Ky. Ct. App. 1980); White v. Thompson, 569 So.2d 1181 (Miss.
1990); J.P. v. P.W., 772 S.W.2d 786 (Mo. Ct. App. 1989); G.A. v. D.A., 745 S.W.2d 726, 727-28 (Mo.Ct. App. 1987), Daly v. Daly, 715
P2d 56 (Nev. 1986); Newsome v. Newsome, 256 S.E.2d 849 (N.C. Ct. App. 1979); Collins v. Collins, No. 87-238-II, 1988 Tenn. App.
123, *29, 30 (Ternn. App. Mar. 30, 1988); Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995).
690
Theresa Glennon, Divided Parents, Shared Children. Conflicting approaches to relocation disputes in the USA, in K. BoeleWoelki, Debates in Family Law around the World at the Globe at the Dawn of the 21st Century, ibidem, 83-106.
691
See H.J.B v. P.W., 628 So 2d 753 (Ala. Civ. App. 1993); Thigpen v. Carpenter, 730 S.W.2d 510 (Ark. Ct. App. 1987); Constant
A..v. Paul C.A., 496 A2d 1 (Pa. Supr. Ct. 1985) in which one parents homosexuality is considered as a relevant issue in deciding
about child custody and visitation rights. See also an interesting decision of the Court of Appeal of Ontario, Canada, which states
that homosexuality is not in itself alone a ground for refusing custody. The question, which must be decided on the evidence, is
what effect that aspect of the parents make-up and lifestyle has on the welfare of the children, Bezaire v. Bezaire, 20 R.F.L. (2d)
358, 1980 Carswell Ont 324 (Ont. C.A. 1980).
687
688
246
According to the middle-ground approach, as it is called,692 parental sexual orientation is

an evaluation criterion in child custody claims.
Paradigmatic of this trend is the M.J.P. v. J.G.P. Oklahoma Supreme Court case,693 where
the lesbian mother should have proved694 that her son would not suffer prejudices by living
with her a clear inversion of the burden of proof: it is the mother who has to show that
she is fit to care for the child, not the State which is called to prove she is unfit to do so.
Even though the reasons behind this approach show, in this case as in other similar ones, a
certain openness to the issue of homosexuality, courts have continued, in fact, to reject
granting child custody to the homosexual parent because of the assessment of other factors, such as the risk of psychological suffering linked to sexual identification which could
occur because the child does not live in a traditional family.
In Europe, a Portuguese judge applied the same ratio, in the Court of Appeal case that
eventually lead to the ECtHR decision in Salgueiro da Silva Mouta v. Portugal.695 Even
without making direct moral judgements on homosexuality, the Court of Appeal696 reduced
the visiting rights of Mr Salgueiro based on evidence produced by the mother that the child
was being stigmatised as a result of the fathers sexual orientation. The tribunal considered
this factor decisive.
Based on this concern, it becomes natural for homosexual parents to conceal their homosexuality, from their social community and even within their own family. This happens
most frequently when the other parent and his or her entourage appear to be bothered by
homosexuality.697 Undoubtedly, in this case, the parent-child relationship would be belittled. Several studies698 refer to the different ways of involving children in claims regarding
their custody. Nowadays minors are usually heard in proceedings concerning themselves.
Many other studies, instead, deal with the opportunities and approaches through which a
parent might inform his or her child about his or her homosexuality.699
Psychologists and psychiatrists have devised different possible strategies in order to make
the childs potential stigmatisation by his or her peers less traumatic, once his or her par-
Ibidem.
M.J.P. v. J.G.P.640 P.2d 966 (Okla, 1962).
694
In this case she did not satisfy the burden of the proof, ibidem.
695
See Salgueiro da Silva Mouta v. Portugal infra 6 Principle of non-discrimination.
696
In the decision Salgueiro da Silva Mouta v. Portugal it is underlined that the Portuguese Court of Appeal had noted first that
the applicant was a homosexual and living with another man, then the court had stated: the child must live in a traditional Portuguese family and it is unnecessary to examine whether or not homosexuality is an illness or a sexual orientation towards
people of the same sex. Either way, it is an abnormality and children must not grow up in the shadow of abnormal situations.
697
Frederick W Bozett, Gay Fathers: How and Why They Disclose Their Homosexuality to Their Children, Family relations, USA,
29, 173-179 (1980).
698
See Editors of the Harv. L. Rev., Sexual Orientation and the Law, 129 (1990). See also, Patricia J. Falk, Lesbian Mothers: Psychosocial Assumptions in Family Law, Am. Psychol., 941-43 (1989); Adele E. Gottfried Allen W. Gottfried eds, Redefining families
Implications for childrens development, Plenum Press (1994).
699
Martin P. Levine (Ed.), Gay men: The sociology of male homosexuality, Harper & Row, New York (1979).
692
693
247
ents homosexuality is known.700 However, in order to achieve integration in a society that

strongly discriminates against minorities, it is necessary, first of all, to create openness
within the family itself. This is because the family is the first social structure in which a
human being starts to form his personality, and such openness will subsequently enable
the child to brave his or her community (school, work place, etc.) and, eventually, to obtain
full equality. In fact, institutions that acknowledge homosexual families evidence a higher
level of integration and the perception of homosexual families is more esteemed.701
Step 3: Nexus Approach between Equality of Treatment and the Best Interest
of the Child
The next phase, depicted from an analysis of American case law, demonstrates an overturn
of the presumption of the middle-ground approach. While in Europe decisions702 refusing
homosexual parent custody claims are overturned during the appeal process through the
use of the principle of non-discrimination, in the USA case law has developed the nexus
approach, based on the assumption that exclusive custody of the child will be granted to
the heterosexual parent only when there is a proven impedimental effect deriving from the
other parents homosexuality.703 Some scholars704 have affirmed that judges may indeed be
influenced by their moral values, even though they refer to the nexus approach, which is
supposed to grant equal treatment to homosexual and heterosexual people: the discretion
of the judge is forceful in evaluating the best interest of the child.
A remarkable case, demonstrating this, is a decision by the Missouri Court of Appeal.705
Here, the court acknowledged the lesbian mothers parental skills, but considered it unsuitable for the child to be placed in the care of its mother in a small and conservative
community of only 5,500 inhabitants where homosexuality was not completely accepted.
In any case, it is not certain that these types of decisions truly reflect the best solution regarding the childs upbringing, in particular since it has not, as yet, been clarified by superior courts whether or not homosexuals should enjoy parental rights.
In many civil law countries, case law has impacted the development of statute law in favour
of adoptions by homosexual couples in order to compel courts to apply an equal treatment
Frederick W. Bozett, Gay Fathers: How and Why They Disclose Their Homosexuality to Their Children Author(s), ibidem;
Robert L. Barret Bryan E. Robinson, Gay fathers, Lexington Books (1990); Laura Benkov, Reinventing the family: The emerging
story of lesbian and gay parents, Crown (1994); Albert Steckel, Psychosocial development of children of lesbian mothers, in Frederick W. Bozett (Ed.), Gay and lesbian parents, 75-85 (1987).
701
Eurobarometer 2008 Report on Discrimination on European Union, supra footnote 31.
702
See, for example, the Portuguese case law, paragraph 6.
703
Ex multis: Bezio v. Patenaude 410 N.E.2d 1207, 1216 (Mass. 1980) in which it was specified that the State of Massachussets
doesnt deny parental rights to homosexuals, unless their behaviour is harmful to children; Hodson v. Moore, 464 N.W.2d 699
(Iowa Ct. App. 1990); Lundin v. Lundin, 563 So. 2d 12732 (La. Ct. App. 1990); Whitehead v. Bleacc, 2, Family L. Rep. (BNA) 2593
(Maine Sper. Ct. Cumberland County, June 1976); Hertzler v. Hertzler, 908 P2d. 946 (Wyo. 1995).
704
Deirdre L. Runnette, Judicial Discretion and the Homosexual Parent: How Montana Courts are and should be considering a
parents sexual orientation in contested custody cases, Montana L. Rev., 57, 177- 209 (1996). For more information about Legal
Realism, see Karl N. Llewellyn, Jurisprudence: Realism in Theory and Practice, Chicago University Press (1962); Jerome Frank, Law
and the Modern Mind, Brentanos Publications (1930).
705
S.E.G. v. R.A.G., 735 S.W. 2d 164, 167 (Mo Ct. Ap. 1987).
700
248
approach based on the assessment of parental skills regardless of any declared sexual orientation. In Spain,706 for example, courts are accustomed to base their decisions on the
best interest of the child, which is a principle completely unrelated to the sexual orientation of parents and its social perception. To this end, the section of Catalonia law on unmarried unions n. 10/1998 relating to homosexual unions grants shared custody to both
homosexual partners living together with children.707 To understand fully the differing perceptions of the principle of the best interest of the child in the USA and in Europe, it is
necessary to analyse how the common morale has affected the application for custody by
homosexual parents in European countries.
3.
The International Relevance of the Best Interest of the Child
When facing a family crisis and assessing the relationships between parents and children,
judges must find a solution that is in the best interest of the child. According to international instruments, the judges discretionary power is in fact governed by this principle.
For instance, article 3 of the United Nations Convention on the Rights of the Child states
that in all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.708 Signatory states are invited not
only to enact statutes aiming to protect childrens rights but also, and above all, to bind
themselves to adopt social regulations consistent with the interest of the child, which must
be pursued by all public institutions, including judicial ones.
The same approach assumes a greater importance in EU member states in that they are
compelled to grant every child the right to a personal relationship and regular direct contacts with both parents.709 Both best interest of the child and biparentalness can also be
interpreted with regard to the protection and respect of private and family life, in accordance with article 8 ECHR.710 In this sense, the Strasbourg Court has, in many decisions,
observed that joint custody grants the same treatment to both parents and allows respect
An interesting account is given by Encarna Roca, Homosexual Families: Adoption and Foster Care, Wellchi Working Paper
Series - Barcelona: Children s Well-being International Documentation Centre, Barcelona, 6 (2007). See also Susana Navas
Navarro ed, Matrimonio homosexual y adopcon Perspectiva nacional e internacional, DBT (2006).
707
Art. 31, Ley 10/1998, 15th July, De uniones estables de pareja states Al cesar la convivencia, los miembros de la pareja, en
el caso de que tengan hijos comunes, pueden pactar con cul de los dos van a convivir, y el rgimen de visitas, de estancia y de
comunicacin con el miembro de la pareja con quien no vayan a convivir. Si no hay acuerdo, la autoridad judicial decide en
beneficio de los hijos, escuchndolos previamente si tienen suficiente entendimiento o si tienen, como mnimo, doce aos.. See
Francesc Jaurena i Salas, La llei dunions estables de parella a travs del dret civil catal i constitucional, Llibres de lIndex (2000)
and Pedro A. Talavera Fernndez, Les unions homosexuals en la llei dunions estables de parella: Aproximaci crtica, 2, Revista
Jurdica de Catalunya, Icab, 333 (2000).
708
That is an extension of the main standard applied since 1993 by the Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption.
709
See article 24, paragraph 3 of The Charter of Fundamental Rights of the European Union. See also Principles of European
Family Law Regarding Parental Responsibilities, in particular, see Principle 3:3, regarding the best interest of the child; Principle
3:10, concerning Effect of dissolution and separation and Principle 3:11 in reference to Joint exercise.
710
Fulvio Uccella, La giurisprudenza della CEDU su alcune tematiche di diritto di famiglia e suo rilievo per la disciplina interna,
Giurisprudenza italiana, IV, 125 (1997).
706
249
for family life, unless exceptional circumstances, referring to the best interest of the child,
are evidenced and may in fact pose a risk and lead to the breakdown of the familial link.711
In the same way, in Italy as in France the best interest of the child is achieved by ensuring that the child maintains direct relations with both parents, through the dispositions of
custody modalities reflecting biparentalness.712 Accordingly, the decisions rendered by the
French Cour de Cassation (on 20 February 2007)713 and the Italian Corte di Cassazione
(on 18 June 2008)714 considered the principle of biparentalness as a priority in deciding
child custody in the instance of a family breakdown. Both courts pointed out that only the
presence of attested impedimental reasons to coparentalit and affidamento condiviso
may lead the judge to opt for unilatral/esclusivo child custody (i.e. exclusive custody). In
particular, the Italian decision proposes three conditions as examples which may be construed as impedimental to joint custody: abnormal living conditions, an irretrievable conflict between parent and child and effective long distance. Certainly, the judge still must
evaluate the facts of every case on their own merits, but there is a real possibility that homosexuality will indeed come under the ambit of abnormal living conditions.
4.
Homosexual Parent and the Best Interest of the Child
Although a parents homosexuality does not imply his or her parental unfitness or a lack of
ability to provide education, this nature could, as outlined above, be arbitrarily considered
an abnormal lifestyle.715 In particular here, reference should be made to countries, such as
Italy, where homosexual unions are not yet legally provided for and indeed outside the legal context face many social obstacles. The results of this can give rise to concerns from an
In this way ECtHR, 24th Mar. 1988, Olsson v. Sweden, S. A, n 130; ECtHR, 19th Sep. 2000, Gnahor v. France, 2000-IX, 50;
ECtHR, 6th Jul. 2004, Piss v. France all available on the website www.echr.coe.int.
712
For example, article 373-2 French Civil Code, which affirms that the breakdown of a relationship has no effects upon parental authority dispositions; see also the Belgian Civil Code articles 373 and 374; the British Children Act 1989, as modified in 2002,
and the Italian Law of 8th Feb. 2006, n. 54, also available on the website http://www.parlamento.it/leggi/06054l.htm.
Katharina Boele-Woelki, The CEFL principles regarding parental responsibilities: predominance of the common core, in
Katharina Boele-Woelki, Tone Sverdrup (eds), European Challenges in Contemporary Family Law, Intersentia, 63-91 (2008);
Katharina Boele-Woelki et al (eds), Principles of European Family Law regarding Parental Responsibilities, ibidem; Alessandra
Arceri, Laffidamento condiviso, Ipsoa (2007); Franois Boulanger, Applicabilit directe de la Convention de New York et intrt
suprieur de lenfant, Recueil Dalloz, 554 (2006); Katharina Boele-Woelki Brente Brat, Ian Curry-Sumner I. eds., European Family
Law in Action, III, Intersentia (2003); Frderic Vauvill, Du principe de coparentalit, Petites Affiches, n du 18 octobre, 4-11
(2002); Jay Folberg ed (1991), Joint custody and shared parenting, 2 ed, Guilford Publications; Salvatore Patti, Laffidamento
condiviso dei figli, Fam. pers. Succ., 300 (2006) and Francesca R. Fantetti, Codificazione europea per lunificazione dei procedimenti
di separazione e divorzio, Fam pers. Succ., 346 (2008).
Some examples of Case law: Cour de Cassation, 1re civ. 14th March 2006, Recueil Dalloz, 881 (2006); Corte di Cassazione, 18h
June 2008, n. 16593; Court of Appeal of Paris 24e ch., 29 th Novembre 2001 n 2001/07965, Actualit Juridique, 2002 p. 64;
Grissom v. Grissom, Court of Appeals of Mississippi 20th March 2007, 952 So. 2d 1023(Miss. App. Lexis 171 2007), in affirming, the
appellate court determined that a modification of child custody was not warranted because an award of joint custody did not
require consent where it was determined that this was in the best interest of the child.
713
Cour de Cassation, 20th Feb. 2007, n. 06-14.643, Actualit Juridique Famille, 189 (2007). See also Michel Thizon, Pour
amliorer encore la coparentalit, Actualit Juridique Famille, 302 (2003).
714
Corte di Cassazione, 18th Jun. 2008, n. 16593, Fam. e dir., 1106-1108 (2008) case note by Denise Amram, Il Foro It., I, 2446
2448 (2008), case note by Geremia Casaburi, Nuova Giur. Civ. Comm., I, 70 - 78 (2009) case note by Manuela Mantovani.
715
However this kind of approach has been criticised by the ECtHR in the Salgueiro da Silva Mouta v. Portugal decision infra because it is in contrast with the pursuit of the superior interest of the minor.
711
250
ethical point of view when one of two parents openly declares himself or herself to be homosexual. The same ethical and moralistic doubts that prevent the acceptance of the idea
of the homosexual family in (Italian) society become greater when the relationship between the homosexual parent and his or her offspring is considered.
If doubts can be raised regarding the lack of parental figures of both sexes in the case of
adoption by a homosexual couple, it stands to reason that they cannot be opposed in cases
concerning custody of the biological parents of the child. In fact, nobody has the power to
deny a biological parent his or her status.716 In such cases, some perplexities relate to the
opportunity to reduce parental responsibilities and rights, such as shared custody or visitation rights, because of the impact a sexual orientation disclosure by a parent could have on
the life of a son or daughter, already suffering because of the familys breakdown.
There are three main reasons for concern which lead to the presumption in case of the
middle-ground approach or to the assumption, behind the burden of proof, in the case of
nexus approach being applied that custody granted to the homosexual parent is not in
the best interest of the child.717The first one is often referred to as social stigma, which is
to say that in a society which is highly discriminatory and hostile towards homosexuality
children living with a homosexual parent will be ostracised and scorned by the rest of the
community and will suffer the embarrassment of being different from the majority.718
Whilst there may be some justification for this first objection,719 the same cannot be said
for the second one, which has no scientific foundation.
The second reason manifests itself in the argument that children will potentially be subject
to a confusion of identity when cohabiting with two mothers or two fathers. However, sexual identity refers to gender distinction and not to sexual orientation: to be homosexual or
heterosexual does not relate to being female or male720 and, moreover, statistics not only
disagree with the idea that the children of homosexuals are more likely to externalise homosexual tendencies, but often provide proof of their well-being and their absolutely
normal development.721 Nonetheless, it is opined that a son or daughter brought up in a
In this sense, see Salgueiro da Silva Mouta v. Portugal, footnote 1.
Very interesting considerations can be found in Bruce D. Gill, Best interest of the child? A critique of judicially sanctioned
arguments denying child custody to gays and lesbians, Tennessee L. Rev., Knoxville, 68, 361-393 (2001).
718
e.g. Alabama Supreme Court G.M.F 730 So.2d 1190 (Ala 1998) in which the potential embarrassment and the humiliation
of the child, related to the fact of living with the mother and her partner, was considered an obstacle to the disposition of his custody to the homosexual parent. See also Bezio A. B. v. Patenaude M., 410 N.E.2d p.1207 (Mass.), in which it was stated that in total
absence of evidence suggesting correlation between mothers homosexuality and her fitness as parent, finding that a lesbian
household would adversely affect children is without basis.
719
i.e. the avoidance of suffrage of children due to the feeling of not being accepted in the society where they live, because of
the homosexuality of his or her parent.
720
Martine Gross et al., Homosexualit, marriage et filiation pour finir avec les discriminations-, Paris, 57-59 (2005). Authors
relate to a study made in 2002 by the American Psychiatrists Association, according to which there are no behavioural or mental
differences between people brought up in same-sex families as opposed to those reared in traditional family units. For this reason
a declaration was made in favour of adoption by homosexual couples.
721
E.g. J.M.F., 730 So. 2d at 1193 in which a psychologist testified that the childs relationship with her lesbian mother was
excellent and that the child exhibited no pathology or mental illness.
716
717
251
homosexual family will be deprived of the contributions from distinct parental figures and
will suffer serious difficulties in recognising roles in society.722 Even though it is becoming
increasingly rare, we can uncover evidence of this assumption in French decisions723 in
which judges have refused to allow a heterosexual parent share his parental authority with
a homosexual parent, based on the risk of psychological prejudice to the offspring derived
from being in a same-sex relationship.724
Finally, immorality and illegality considerations of homosexuality play an important
role when deciding whether or not to grant the custody of a child to a homosexual parent.
Often, so as to increase his or her own chances of obtaining custody, the heterosexual parent not only attempts to denigrate the sexual habits or speculate on the probable lifestyle of
the other parent, but also describes stereotypical behaviours of the other parent in order to
portray as immoral what might in fact be absolutely normal situations.725 In a recent Italian case,726 for example, the mother accused her former husband, who had declared himself homosexual, of wanting to bring their daughter to a Greek island renowned for its sexual tourism, when in fact the booking had been for an absolutely normal family holiday on
the island of Samos. In this case the judge restrained himself from falling into the moralisation pitfall the mother had prepared and in permitting the fathers vacation with his
daughter took advantage of the occasion to grant shared custody.
Analysis of Italian case law seems to suggest that moralistic intentions are bound to fail,
paving the way for a firm belief in biparentalness based on the best interest of the child. 727
In this light, accusing the other parent of an irregular lifestyle in the hope of gaining favour
with the courts does not yield the expected result: the parent who shows a lack of respect
towards the other parental figure in front of the children inadvertently sets a bad example,
and thus may be punished, even to the extent that the custody may be awarded exclusively
to the other parent.
Suitable parents raise their child to be tolerant towards different cultures and to oppose all
forms of prejudice, be it racial hatred or intolerance towards homosexuals. Moreover, in
highly conflicting situations due, for example, to the breakdown of a relationship, lack of
respect of the heterosexual parent towards the homosexual parent could be interpreted as
Ex multis Collins v. Collins No 87-238-II, 1988 WL. 30173, at *3 (Tenn. Ct. App. Mar. 30, 1998).
Court of Appeal of Paris, 20th May 1996, Juris-Data 021705 and Court of Appeal of Grenoble 20th Jul. 1988, Juris-Data044724.
724
In an important study considering 34 decisions, the Author underlines that in more than 70,5% of them judges provided
for shared-custody, while in 23,5% they opted for excluding the homosexual parent from sharing the parental authority, meaning
that in only two decisions was the care of the child granted to the homosexual parent. Annie Gouron Mazel, Juge de la famille et
homosexualit, Droit de la famille, Jan., 4-10 (2002).
725
See Adeline Gouttenoire Cornut, Autorit parentale et homosexualit, Droit de la famille, 3, 29 (2000); Thierry Fossier,
Homosexualit et divorce, in Rubellin-Devichi ed., Droit de la Famille, JCP G,1270 (1998).
See Virginia Supreme Court Roe v. Roe, 324 S.E.2d 691 (Va 1985). Instead, in TCH v. KMH, 784 S.W.2d 281, 284- 285, the
mothers lesbian relationship and the series of lies she told about her homosexuality were presented as proof of her immorality.
726
Tribunale di Bologna, 15th Jul. 2008, Giur. it., 5 (2009).
727
This is true unless the consideration about the fact that Italian judges use to evaluate conflicts between parents not as an
obstacle to shared custody. See also Tribunale di Nicosia, 22nd Apr. 2008, Foro It., 1914 (2008).
722
723
252
mis-education as defined in article 24, par. 3 of the Charter of Fundamental Rights of the
European Union. On this subject, Italian case law, after the adoption of law n. 54/2006 on
shared parental custody, when dealing with a declaration of homosexuality from one of the
two parents, has always rejected the request for exclusive custody by the heterosexual parent.728 In fact, judges have found that there are no reasons for interfering with the sharing
of parental authority and responsibilities towards the development of their children. The
cited cases can be viewed as modern and open-minded, and they indeed represent a significant juridical step towards child custody by homosexual parents.729
Another recent decision states that lesbian couples and the biological child of one of two
women constitutes a typical familial scheme that should be protected.730 In this perspective, the recognition of a homosexual parents parental responsibilities could also be considered an economical child protection measure. In fact, according to Family Law, parents
should maintain, educate and take care of their children and if parental skills were not acknowledged that would imply immunity from parental responsibilities in same-sex families,731 which exist as de facto entities not codified by the law.
However, what is more surprising is the sensational way in which these decisions were received by public opinion.732 In particular, public opinion perceived these decisions as innovative, as a new and pioneering legal development, even though these sorts of stances had
already been accepted not only by the ECtHR nine years previously, but even earlier, as is
clarified below, illustrating that the application of the principle of non-discrimination relating to sexual orientation in the family context and in particular relating to child custody disputes between a homosexual parent and a heterosexual one was not and perhaps
has not yet been completely accepted.
In truth, in a recommendation issued on 1 October 1981 the European Council announced
that child custody, visiting rights and housing should not be limited based solely on the
See Tribunale di Venezia, 19th Nov. 2008, or Tribunale di Napoli, 28th Jun. 2006, also confirmed by Court of Appeal 11th Apr.
2007. Moreover, the Tribunale di Bologna 15th Jul. 2008, stated that the simple fact that one of the two parents is homosexual
doesnt justify and does not permit any justification- to decide for exclusive custody in favour of the heterosexual parent.
Alberto Figone observed that sexual orientations dont determine a parents fitness, since only the capability to educate,
take care of, to maintain children in a serene environment in order to let the childs personality well brought up, comments on
Corte di Cassazione 17th Oct. 1995, n. 10833, Fam. e dir., 25 (1996). More recently, the well known decision of Tribunale of Napoli,
28th Jun. 2006, stated that during personal separation, one spouses homosexuality, as well as homosexual relationships, are per
se irrelevant, in evaluating a parents fitness for custody.
729
Indeed, they were mostly in line with warnings provided by the Italian Supreme Court in Cass. n. 16593/08.
730
Tribunale per i Minorenni di Milano, 20th Oct. 2009, available in the website www.lider-lab.eu.
731
David Hill, The recognition of homosexual parents in the United Kingdom, in Katharina Boele-Woelki, Tone Sverdrup, European challenges in contemporary family law, ibidem, 113-129.
732
The media portrayed this decision as an innovative one. It is important to stress that not only associations linked to homosexuality (such as Arcigay, Arcilesbian etc.) published this news, but also websites, newspapers and newscasts affiliated with
other topics, such as consumers (Aduc - Italian Association of Consumers) or non-profit associations (UAAR, Studenti.it) and others (Padridivorziati); important Italian newspapers (not only local ones), such as Il Corriere della Sera, Repubblica and Il Giornale;
and also online Legal Journals, such as Famiglia e Giustizia and Persona e Danno.
728
253
sexual orientation of the father or mother.733 Moreover, the ECtHR had already stated the
principle of non-discrimination on 21 December 1999, in the case of Salgueiro da Silva
Mouta v. Portugal.734
5.
The Principle of Non-discrimination
In the Salguero decision the ECtHR ruled that the negation of custody to a homosexual
parent is a violation of art. 14 of the ECHR, which prohibits discrimination in exercising
rights and freedoms guaranteed by the same Convention. In this case the right at issue was
the right to respect for private and family life as expressed in art. 8 ECHR. The petitioner
was deprived of the custody of his daughter who, it was argued, should live in a traditional
Portuguese family and not in the darkness of abnormal situations. The ECtHR affirmed
that, in this instance, there was no reason or rational justification for discrimination because the measure used (the negation of custody) was absolutely disproportionate to the
aim pursued (to let the child grow up in the midst of a traditional Portuguese environment).
The rationale behind the decision to exclude the homosexual parent from custody was
based on the protection of the child from isolation and scorn by a strongly intolerant society. But in achieving non-discrimination it is necessary to create opportunities of integration so as to overcome stereotypes and prejudice assumed by public opinion.
As an instrument of soft law the Principles of European Family Law regarding Parental Responsibilities state a general principle of non-discrimination which should be applied not
only to children, but also to whomever is responsible for them (Principle 3:5).735
For these reasons, judges must attempt to balance the pursuit of the well-being of the child
on the one hand and the equal treatment of both parents on the other. In particular, courts
may consider the childs feelings during the process, perhaps consult a family guidance
counsellor so as to assist the decision making process particularly with regard to the child
and also make provisions to follow the childs development in the new family organisation.
In fact, custody orders can be updated if they are incapable of ensuring child protection
and care or if actual circumstances have changed. In this perspective, in most cases the
protection of the child against the intolerance of the social community is unimportant.736
In the French text we can read: le droit de visite et lhbergement des enfants par leurs parents ne doivent pas tre limits
pour la seule raison du penchant homosexuel de lun deux.
734
Ibidem see footnote 1.
735
Katharina Boele-Woelki et. al., Principles of European Family Law Regarding Parental Responsibilities, ibidem, 44-48.
736
See the European Convention on the Exercise of Childrens Rights, Strasbourg 25th Jan. 1996, and in particular art. 3, which
states that the child is entitled to be consulted and express his or her views in all proceedings where he is involved. See also Art. 9
2 of the Convention on the Childs rights, by which: In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
733
254
As mentioned above, the supranational institutions are a guarantee of rights aimed at sensitising, persuading and often securing the process of self-determination in individual
states. For these reasons they can be interpreted as a means of action in every national
court. In other words, the EU institutions and the institutions associated with the ECHR
work as receptors of violations of individuals rights and their decisions regarding whether
or not to accept these rights affect all members or signatory states. Indeed, their decisions
become precedents (in case of judicial decisions) for the national courts or maximum indications (in case of persuasive efficacy acts) or coercive (in case of regulations and directives) for state legislators and national courts.
The important dialogue between Communitarian, European and national institutions permits the former to give voice to the needs of single individuals and ensure their protection
in the latter institutions. Moreover, it allows the comparison of solutions and difficulties,
given for the same issues by the different countries. These perspectives include all decisions related to the recognition of partnerships rights.737 For example, in the case of D. and
Kingdom of Sweden v. Council of E.U.738 the petitioner and his partner, legally enrolled in
the register of Swedish civil unions, were excluded from the right to family allowances
granted by the Staff Regulations of Officials of the European Communities on the basis
that they were reserved only for married employees. In its decision, the ECJ argued that
marriage should be taken to mean a union between persons of different sexes, and thus
the failure of payment did not constitute discrimination (at that time Directive 2000/78
was not effective), nor was it a violation of Art. 8 ECHR. Ten years after that decision, a law
was passed in Sweden permitting homosexuals to be united in marriage.
As this case shows, the dialogue began between Swedish society and European institutions
at a time when it was impossible to extend the economic right concerned to a person related more uxorio. It has led, by means of this distant institutional dialogue, to new stimuli
up to the point of being able to guarantee homosexual couples the same rights as heterosexual couples, in Sweden at least. At the EU level, the principle of non-discrimination,
which has a significant place in Art. 13 of the EC Treaty, is one of the most efficient instruments for human rights protection. In fact, according to that provision, the Council, acting
unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to fight discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or, last but not least, sexual orientation.
See ECtHR 7th January 2004, K.B. v. National Health Service Pensions Agency, case C-117/01, Racc., 541 (2004); ECtHR 24th
Jul. 2003, Karner v. Austria, case C-40016/98, Racc., 197 (2003); ECJ 31st May 2001, D. and Kingdom of Sweden v. Council of E.U.,
case c 122/99 and c 125/99, available in the website http://curia.europa.eu; ECtHR 17th Feb. 1998, Grant v. South-West Trains
Ltd, case C-249/96, Racc., 621 (1998). See also Stefano Fabeni Maria G. Toniollo ed., La discriminazione fondata
sullorientamento sessuale Lattuazione della direttiva 2000/78/CE e la nuova disciplina per la protezione dei diritti delle persone
omosessuali sul posto di lavoro, Ediesse (2005); Helen Toner, Partnership rights, free movement, and EU law, International Specialized Book Services (2004).
738
ECJ 31st May 2001, D. and Kingdom of Sweden v. Council of E.U., case c 122/99 and c 125/99, ibidem.
737
255
6.
Conclusions
Discrimination against a person because of his or her sexual orientation results in the deprivation of dignity, freedom, choice and self-determination. In fact, homosexual persons
belong to a minority, one which is slowly affirming its own rights, both as individuals and
as couples.739 Institutions are called upon to protect this minority in all areas of life against
intolerant behaviour and unequal treatment.
Despite the role played by many normative and juridically relevant supranational documents and covenants, the principle of non-discrimination regarding sexual tendencies has
not been completely accepted by all countries when it comes to homosexual rights. Following a number of decisions, such as the ones mentioned above, involving the theme of family, parenthood and homosexuality, public opinion remained divided between those who
strongly support and agree with the new rights and those who perceive these decisions as
scandalous.740
Topics dealing with ethically and morally sensitive issues tend to enhance the two different
reactions just mentioned. This occurs in a continuously evolving society, in which culture
and traditions inevitably meet and contrast with technological, social and economic developments. The merging of these different topics will never produce a unique line of action
by institutions, without having consequences for the entire range of human values.
In other words, the issue of family, parenthood and homosexuality, and in particular the
aspect regarding the parental skill of a person who is openly homosexual, whichever way
one would want to interpret it, forces every member of this society to think about their personal scale of values and verify to what extent the parameters of judgement must or might
be modified and to what extent one is ready to abandon traditional ways of thinking which
have been around for almost two millennia. For example, thanks to scientific research, our
societies have more cognitive instruments that allow us to overcome traditional prejudices
in the light of scientific evidence. Nowadays, homosexuality is no longer considered a mental disease by medical science, or, according to social science, an immoral lifestyle. On the
contrary, it meets the requirements of a way of being, and it is no longer seen as a crime by
the law.
In reality, the Italian legal system is going through a transitional phase in which a new
concept of the family is developing and spreading, not only in judicial decisions or law
schools, but also among the population as a whole.
See footnote 95.

Tribunale di Venezia, 14th Nov. 2008, ibidem, Tribunale di Bologna, 15th Jul. 2008, ibidem; Tribunale di Napoli, 28th Jun. 2006,
ibidem; Court of Appeal 11th Apr. 2007, ibidem.
739
740
256
The notion of homosexual parenthood is also becoming more widely accepted thanks to
the application of the principle of non-discrimination based on sexual orientation, not exclusively in child custody disputes but also in other types of dispute. The recognition of
shared custody is also being accepted as the main way to serve the best interest of the
child. In fact, the import from supranational institutions of all the above mentioned principles and their application in courts has led to a broad discussion in Italy of the traditional
idea of the family and to petitions to its highest court whether denying homosexual people
the right to marry might be in conflict with its Constitutional values.
However, as far as homosexual parents are concerned, nowadays the diffusion of these
elements continues to raise many issues in society, since to a great extent many people are
still very much attached to their own traditions. Thus, while from a legal point of view, Italy could be ready, using the international principles of the best interest of the child,
shared parenting and non-discrimination, to permit homosexuals to create families, in order to actually harmonise its legislation with other European countries that already provide for same-sex marriages or homosexual adoptions, a significant change of traditional
culture is required. Immigration, free movement and scientific progress in general have
accelerated the laicisation of moral values. Nonetheless, so far the process does not seem to
have been completely concluded.741
741
See Corte Costituzionale 15th Apr. 2010, ibidem.
257
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