INTRODUCTION:CONSTITUTIONAL JUSTICE IN AUSTRIA

The Austrian Constitution was enacted in 1920 and, regarding its process of origin, was mainly influenced by Hans Kelsen, who especially focused on the creation of a Constitutional Court (Verfassungsgerichtshof). The Constitutional Court is a centralized body that has the function of controlling the constitutionality of various acts of the state, including judicial review of legislation. The competences of the court have been continually extended over the past ninety years, which has substantially improved the access to constitutional justice. However, the Constitutional Court was designed as a kind of “negative legislator”; its function is to control and to declare legislative and administrative acts void when they are deemed to be unconstitutional or in breach of fundamental rights.

The developments of the past three decades clearly show that the Court is willing to become more active by using different possibilities to extend its competences toward taking a more active role in constitutional interpretation. This contribution shall analyze the different ways of transforming constitutional law through jurisdiction.

Since 1925, article 138, paragraph 2, of the Austrian Constitution has enabled the Austrian Constitutional Court to act as a “positive legislator.” Although the practical relevance of the provision is not very significant, it clearly gives positive powers to the court in a sensitive area: the division of competences between the Federation and the States (Länder). The provision reads as follows: “The Constitutional Court furthermore determines at the application of the Federal Government or a state Government whether a legislative or executive act is part of the competence of the Federation or the States.”

The Czech idea of the constitutional tribunal is closely associated with the concept of the constitutional court as a negative legislator. The idea goes back to the early 1920s, to the teaching of normativist school of law that influenced the creation of the first Czechoslovak Constitutional Court of 1920. The idea of the Court as a negative legislator is controlling nowadays as well; it has found its way into all major textbooks in the field.

In this report, I first outline the history of the constitutional courts on the Czech territory. I also explain the power held by the current Czech Constitutional Court. The second part describes constitutional complaints and their potential to modify the conception of the Court as negative legislator. Then I proceed with analyzing interpretative decisions in abstract constitutional review, which accounts for the situation when the Court does not annul the law but rather provides its interpretation, which is constitutional. The fourth and fifth sections deal with several types of cases in which the constitutional court serves as a real negative legislator. First, I analyze several positive aspects of decisions annulling laws. Then I discuss one of the most controversial issues – the constitutional court's lawmaking activity in the area of unconstitutional gaps in the legal order. In the sixth section, I raise the question of what happens to the text of the law if the last amendment to that law is annulled by the Court.

In the earlier chapters I have argued that the public interest in relation to three key institutions in a democracy– lawyers, access to justice and the judiciary– is now a matter that is too important to be left to lawyers and judges alone to determine. Without doubt, dialogues with non-lawyer stakeholders are becoming more prevalent with respect to these institutions, and these stakeholders are increasingly making their voices heard wherever such determinations are being made.

As we have seen, the very concept of professionalism for lawyers has been re-negotiated over the last thirty years between the state, regulators and consumer bodies, on the one hand, and the profession, on the other, in order to redress a perceived failure to achieve a balance between professional obligations and professional benefits that was in the public interest. These dialogues have been particularly active in relation to the elements of market control, public protection and autonomy. For the first, consumer pressure (allied to that from the Office of Fair Trading and, more recently, the Legal Services Board) is introducing ever more competition– with ABS being but the latest exemplar. As for public protection and autonomy, the dialogues with government, regulators and consumers have convinced the professional bodies that there must be a significant lay participation at all stages in the complaints process, from the new single gateways for complaints, to the panels of the disciplinary tribunals. Both in England and Scotland non-lawyers have begun to input to the drafting of new professional standards of conduct and service. Further, the movement away from self-regulation has led to lay stakeholders being on almost all regulatory bodies in connection with the legal profession in the United Kingdom, with a view to ensuring that the profession does not lose sight of the public good.

The public good and access to justice

In Chapter 2 I looked at the efforts of lawyers over the years to define the best interests of the public with respect to the profession and professionalism, and how these had come under challenge in recent years. Next I will be looking at how lawyers over the years have sought to define the best interests of the public in relation to access to justice, and poverty legal services in particular, and how here too their efforts to define the public good have come in for challenge. The solution, I will argue, lies in fuller and more comprehensive dialogues between the stakeholders.

‘Access to justice’ as a phrase can be traced back to the nineteenth century, but as a concept it is a comparative newcomer to the political firmament, coming into frequent usage only in the 1970s. Since then there has been no holding it. Hundreds of books, articles and reports have included it in their title, not to mention a swathe of initiatives from lawyer associations, politicians, governments, charities and NGOs around the world. As the redoubtable Roger Smith noted in 2010, ‘In general … the phrase “access to justice” has a well-accepted, rather vague meaning and denotes something which is clearly– like the rule of law– a good thing and impossible to argue you are against. The strength and weakness of the phrase is in its nebulousness.’ In short, access to justice is like ‘community’ in being a feel-good concept– one that everyone can sign up to with uncritical examination.

Miss Hamlyn, a not particularly well to do but widely travelled spinster and daughter of an English solicitor, bequeathed the world a startling bequest– a bequest so far-sighted that her trustees immediately sought guidance as to whether it was void from uncertainty since the beneficiaries were that indeterminate category ‘the Common people of this Country’. Fortunately for the legal world, counsel was of the opinion that this meant the UK public and the judge in Chancery, a mere six years later, agreed. Bleak House this was not, however, since the capital of the trust remained largely intact. The novelty of the bequest was twofold. First, it was to fund public legal education– a concept which was not invented for another fifty years. Secondly, the lectures were not to instil in the public an awareness of their rights so much as to heighten their consciousness of the responsibilities and obligations imposed on them from living in a country that believed in the rule of law. I have no doubt therefore that Miss Hamlyn would have approved of ‘Lawyers and the Public Good’ as a title for the lectures– and also their iconoclastic theme– namely, that legal institutions are too important in a modern democracy to be left to lawyers alone.

But first a word of explanation. The honour of being only the second Scots academic to deliver these lectures (Professor Sir T. B. Smith was the first) should have fallen to Sir Neil MacCormick, but his untimely illness and death prevented this, and the mantle fell to me. I think I was Neil’s first doctoral student, since in 1969 he became the co-supervisor of my D.Phil at Oxford. It was on the Law Lords– and partly at Neil’s suggestion the Law Lords will feature strongly in my lecture on the judiciary. Neil shared my fascination in the process of judicial decision-making and was the ideal supervisor for a young person in need of confidence and reassurance whenever writers’ block came to call. His enthusiastic optimism has stayed with me throughout my professional career.

In this chapter I will examine how and why professionalism in lawyers is said to be in decline, and in so doing I will explore the contemporary understanding of what it means to be a member of the profession for the twenty-first-century lawyer. And, for those impatient to get to the end, I shall conclude by arguing that, despite everything, professionalism has been, and remains, a socially constructed concept that is the product of dialogues involving more than lawyers.

Solicitors: a profession in crisis?

Wherever you go in the English-speaking world, commentators have greeted the new millennium with the gloomy assertion that for lawyers the era of professionalism is in crisis, if not at an end. However, closer scrutiny of these jeremiads reveals that their apparent unity is indeed only apparent– they are not saying the same thing:

1. At one end of the spectrum are the commentators, like Richard Susskind (though in fairness there is no one quite like Richard), who anticipate the possible demise of the profession itself and presumably professionalism with it. His latest book, The End of Lawyers?, focuses on the inevitability of an increasing commoditisation of the work of lawyers and with it a degree of de-professionalisation, but adds somewhat ominously, ‘For those lawyers who cannot [adapt] … I certainly do predict that their days are numbered … The market … will increasingly drive out … outdated lawyers.’

2. At the opposite end of the spectrum is a critique that paradoxically is a product of the continued success of professions. Its complaint is that the coinage of ‘profession and professional’ is being debased, since there are more professions than ever, at least 130 at the last count according to the Panel on Fair Access to the Professions report, and allegedly one in three of the current workforce is now in a professional or managerial job. After all, if we are all professionals now, then in the words of Gilbert and Sullivan, ‘when everyone is somebody, then no one’s anybody’. If successful, this usage will mark the death of professionalism in an exclusive sense, ironically thereby removing part of the cachet responsible for the rampant pursuit of professional status in the last century. It is as though the older meaning of a professional– ‘a member of learned vocation’– has been replaced by a newer one– ‘one who earns a living from an occupation as opposed to the amateur who does it on an unpaid basis’. A similar, but less obvious, dilution of the meaning of ‘professional’ can be seen in descriptions of behaviour as ‘unprofessional’, for example, habitually turning up to work late, or not taking a ‘professional’ pride in what one does, in one’s appearance, courtesy or personal hygiene. In these contexts ‘professional’ has not lost all of its content of being ‘a good thing’, since it contains an explicit reference to standards, but such a usage strips out much of the other content from the term that once distinguished certain occupations from others.

3. The rising numbers of lawyers has troubled other commentators and, indeed, doubtless existing practitioners who fear that it will lead to an over-supply of lawyers, a decline in profitability, a shortage of work and ultimately the decline of the profession. Rick Abel, the foremost thinker on the legal profession in the Anglo-American world in recent times, of course, viewed the dramatic increase in UK lawyers over the last twenty-five years as a loss of market control by the occupation– in his eyes the death of professionalism as we know it.

4. The expansion of the profession has been accompanied by an ever increasing specialisation within the profession, and with it a diversification of work settings. The traditional image of the lawyer as an independent practitioner has given way to a world in which the significant majority of lawyers now work either as employees in larger law firms or as in-house lawyers. This dramatic shift stimulated the ‘death of the profession’ doom-smiths to posit the replacement of a collegiate model of the profession with a factionalised, heterogeneous and fragmented, but curiously non-diverse model.

5. Perhaps the most sustained critique of today’s profession, however, relates to the twin threats posed by consumerism and commercialism as the deregulation of the legal services market which began over twenty years ago steamrollers on. Anthony Kronman, the Dean of Yale Law School, is but one of several contemporary commentators to claim that the modern profession has lost its traditional ideals, its public spiritedness and its moral compass as our opening quote revealed. The fear is that when consumerism forced open Pandora’s de-regulatory box what flew out was not sin, but one deadly sin in particular: greed.

In Chapters 2 and 3 I looked at two institutions that are important for a properly functioning democracy: a vibrant legal profession and viable forms of access to justice. With respect to the former, I suggested that the future of the profession no longer lies entirely in their hands, but in the ongoing dialogue between the profession and the wider community. Similarly, in Chapter 3 I argued that the future of publicly funded legal assistance was no longer a matter for the profession and the Treasury, but best approached through dialogues with all the stakeholders. In this chapter a third institution which is vital for democracy– the judiciary, and the appellate judiciary in particular– will be scrutinised. My starting point here is one that was also identified by Hazel Genn in her acclaimed Hamlyn Lectures, Judging Civil Justice, in 2008: namely, that in the last forty years we have witnessed a significant growth in the power of the judiciary vis-à-vis the Executive and the legislature. This new form of constitutionalism, can be seen in the expansion of legal remedies, the exponential growth of judicial review of administrative or government decisions, the evolution of judicial case management, the judiciary’s increased role in the running of the courts, the sovereignty implications of devolution, the incorporation of the European Convention on Human Rights into UK domestic law and the establishment of the UK Supreme Court.

All of this has greatly expanded the ability of the judiciary to make determinations of the public interest. Indeed, to paraphrase A. A. Milne, ‘declaring the public interest is what judges do best’. They do it in judgments, they do it when performing an administrative role and latterly they have done it as part of what I call an intra-governmental dialogue. For most of the time the judiciary are happy making these decisions as to where the public good lies, because as public servants they feel that they are not only well qualified but often the best qualified to do this. Where they are deciding cases and the legal test turns on what the public interest is, their assumption seems uncontentious. However, much more often the judiciary are determining what they consider to be the public good in an indirect fashion through their decisions in policy areas or in judicial review cases, or in interpreting the Human Rights Act. In these areas the judiciary’s prerogative to determine the public interest does not always go unchallenged, whether by the media, when judges are extending the law on privacy; by Home Secretaries, when their powers are being curtailed by judicial decisions; and by the public, when the Supreme Court fails to protect them from what they see as unfair bank charges. My own bugbear is legal professional privilege: the right of the client to have his or her consultations with his or her legal adviser kept confidential. Over the years this has been raised from the status of a balancing principle against the court’s right to the best evidence in the pursuit of truth, to its current status of a ‘fundamental human right’ as Lord Hoffmann dubbed it in the Morgan Grenfell case, which trumps every other competing value, including the protection of life and the vindication of the innocent. Given that Parliament has said on several occasions that there are values more important than legal professional privilege, like Bentham I wonder whether in this area the judiciary really have got the public interest right.

Deciding to bring a lawsuit is a difficult decision. One should make every effort to avoid going to court. Even someone who “wins” a lawsuit, as measured by legal outcome, may lose more in time, energy, and damaged personal relations than the victory is worth. In all three of our legal systems lawyers advise clients: Sue only if a lawsuit cannot be avoided.

Mary Roh has reached that point. She has decided to sue. Most likely, that means she needs to find a lawyer. Although a lay person might present a small case to a court without being represented by a lawyer, in a civil case of consequence, such as we have here, a lawyer is a practical necessity; in Germany, it is a legal requirement. In this chapter we consider when one needs a lawyer and how one goes about finding and engaging one. We then consider the legal systems within which they operate.

Even before Roh decides to sue, she may find a lawyer helpful to negotiate a settlement. Ordinarily parties try to settle disputes without suing. Introducing the right lawyer may make John Doh, Jr. realize that Roh is serious about the dispute and is thinking about suing. On the other hand, introducing the wrong lawyer could undermine settlement. Roh will decide whether and when to use a lawyer based on convenience, cost, and other personal considerations.

Foreword

Philip K. Howard

In one of the lands in Gulliver’s Travels, called Lagado, everyone follows a theory slavishly, with consistently disastrous results. Houses fall down because the inhabitants don’t believe in right angles. Clothes don’t fit because they’re made pursuant to a mathematical calculation. Lagado is a place, as Jonathan Swift describes it, where inhabitants don’t care whether things actually work. What they care about is their theory.

Swift could have written a similar chapter about America’s system of civil justice. Everyone reading this book knows the theory: a completely neutral system in which judges see their job as referees of an adversarial process, with the ultimate verdict rendered by a jury picked (more or less) at random. This theory of justice has one predominant virtue: impartiality. No one can claim the fix is in when the judge lets parties claim almost anything, lets them seek discovery under every pebble for years, and then, if the parties can last it out, lets the jury make all important decisions. It’s either thumbs up or thumbs down. Defenders of the system see in this theory an almost incarnation of our national values: Former Senator John Edwards, a successful trial lawyer, praised the system in an essay in Newsweek entitled “Juries: Democracy in Action.”