1. Introduction
Talking about national and international courts today often implies a certain fiction. In many jurisdictions, higher courts do not decide cases with all judges sitting together.Footnote 1 Instead, they rely on a number of small panels, each composed of a subset of judges, to handle the majority of cases. In addition to these panels, however, such courts habitually create a larger formation consisting of more judges and ascribe a special role to it. Jurisdictions label the latter formations in different ways—grand chambers, en banc courts, plenums or extended panels, to name but a few—but for the reader’s convenience, this article uses ‘grand chambers’ as a universal term to encompass all such larger judicial formations.Footnote 2
Across jurisdictions, grand chambers are generally expected to play a similar, significant role. In the United States (US), grand chambers in federal courts of appeal are said to provide ‘the most authoritative consideration’ within those courts,Footnote 3 which, given the scarcity of US Supreme Court review, is often the final word on the legal issue in the jurisdiction.Footnote 4 The 15-member Grand Chamber of the European Court of Justice (ECJ) has been dubbed the ECJ’s most important formation, ‘the court within the Court’, which is entrusted to ensure ‘the coherence of the case law and also to further develop the law’.Footnote 5 Similarly, the Grand Chamber of the European Court of Human Rights (ECtHR) has been considered ‘the most solemn’Footnote 6 and the ‘highest judicial body in the Convention system’,Footnote 7 which ‘plays an important role in ensuring clear and consistent case law’.Footnote 8 Similar accounts are also found in other jurisdictions, including the United Kingdom (UK),Footnote 9 Canada,Footnote 10 Taiwan,Footnote 11 Japan,Footnote 12 Singapore,Footnote 13 Israel,Footnote 14 BrazilFootnote 15 and Slovakia.Footnote 16
Despite their importance, many grand chambers have been undergoing some soul-searching about their proper role. In the US, there is a longstanding debate on restructuring some of the federal circuits, with one of the central topics being the proper functioning of the en banc procedure of the federal appellate courts.Footnote 17 Some consider en bancs too political, allowing court majorities to overturn findings of individual panels on the basis of political disagreement;Footnote 18 others think that en bancs are too large and unwieldy and hear too few cases to be able to guarantee consistency across case law.Footnote 19 At the ECJ, after around a decade of experience with a 13-member Grand Chamber, the size of the formation increased to its current 15 members, and the method of selecting the members was changed from the fixed participation of all five-judge chamber presidents to a more equal rotation system.Footnote 20 This, however, only stirred up further discussion, with some of the participants calling the body an ‘overall success’,Footnote 21 while others criticised it for being too big to deliberate and reason effectively and calling for further reforms.Footnote 22
In some countries, such as Hungary and Poland, grand chambers have been considered among the main culprits in the political undermining of the rule of law. They are composed of carefully selected judges whose role it is to ensure that sensitive cases are decided in line with the government’s view.Footnote 23 In other jurisdictions—such as Slovakia,Footnote 24 TaiwanFootnote 25 and SingaporeFootnote 26—or courts like the General Court of the Court of Justice of the European Union (CJEU),Footnote 27 grand chambers have only recently begun to be utilised, with some of them struggling to find their proper purpose.Footnote 28
The problem is that comparativists have largely ignored grand chambers.Footnote 29 The existing accounts of grand chambers often come from court insiders, a fact which reflects that these bodies are largely hidden within their courts, and that often their role depends upon the internal practices of the court rather than externally imposed legal rules.Footnote 30 The external accounts are rare and often presume a universal purpose for these bodies,Footnote 31 or consider only select second-order questions such as grand chamber compositionFootnote 32 and the types of cases grand chambers hear.Footnote 33 Almost invariably, the analysis focuses on grand chambers within a single jurisdiction.Footnote 34 Even in the otherwise well developed debate on the en banc procedure in the US federal courts of appeal, the focus remains narrow, with broader comparative analysis notably absent.Footnote 35 The fact that the solutions adopted in various jurisdictions differ sharply has been neither examined nor explained.Footnote 36
This article aims to bridge this gap and provide an analytical framework within which to discuss and compare the roles of grand chambers. Drawing on examples from across national and supranational jurisdictions, it highlights the tensions that courts face in constructing and using grand chambers. On the one hand, grand chambers can ensure broader and equal participation of judges in the court’s decision-making process, reducing the ‘luck of the draw’ in panel cases and ensuring that diverse interests are represented.Footnote 37 On the other hand, they can improve the doctrinal quality of their courts’ case law, enhancing its persuasiveness and consistency.Footnote 38 The problem is that fully achieving both objectives—broad participation and improved quality of case law—is often impossible, as each demands a different design and function for the grand chamber.Footnote 39 Jurisdictions must, therefore, choose which objective to prioritise and which to compromise.
This article demonstrates that jurisdictions approach this tension in varied ways. Some adopt what this article terms a ‘collective control model’, emphasising participation of all judges, or their representative cross-section, in decision-making, even if this compromises output quality.Footnote 40 Others favour a ‘jurisprudential model’ that prioritises the doctrinal quality of case law, often at the expense of the equal participation of all judges in the decision-making process.Footnote 41 While this distinction is somewhat relative, it accounts for many observable differences between grand chambers across jurisdictions concerning their composition, the types of cases they hear, the procedures they follow and the way in which their decisions are drafted and subsequently used within the court.Footnote 42 The article contextualises these differences, seeking to question the assumption that grand chambers are self-evident, value-neutral bodies. It shows, instead, that the choice between the two models reflects three layers of interrelated factors pertaining to: the court’s internal organisation; the court’s sociolegal context; and the deep normative assumptions held about the nature of law and judging.Footnote 43
This article contributes to three strands of literature. First, it adds to the growing body of research on judicial practices, which increasingly examines the role of court-internal actors and practices such as court presidents,Footnote 44 case assignment,Footnote 45 judicial deliberationsFootnote 46 and non-judicial personnel.Footnote 47 The article establishes that grand chambers are influential judicial bodies warranting proper scrutiny in their own right.
Second, the article synthesises existing studies on grand chambers, helping to place analyses of single jurisdictions on a common theoretical footing. It argues that a comprehensive understanding of grand chambers requires these bodies to be viewed from both a legal perspective—considering their influence on the doctrinal quality of the court’s case law—and a political one—examining how they shift the balance of power within the court—while acknowledging the possible tensions between these two. It also argues that a comprehensive account of grand chambers must inquire beyond the usually analysed features of grand chambers—their composition and the types of cases they hear—to consider other aspects of their functioning, such as the procedures through which they reach a decision. Moreover, as all these features are often not (entirely) determined by legal rules but depend on the court’s practices, it is necessary to scrutinise both rules and practices.
Finally, the article contributes to the broader debates on the legitimacy of judiciaries and other governmental institutions. The tension between input and output legitimacy is not unique to grand chambers; a similar issue arises in respect of judicial appointments,Footnote 48 court administrationFootnote 49 and broader governmental structures.Footnote 50 Grand chambers exemplify this tension, demonstrating how it permeates even seemingly technical judicial practices, from case assignment to the style of deliberation. This makes grand chambers a crucial yet underexplored institutional component through which judicial authority and normative foundations of legal systems can be better understood.
The article proceeds in four parts. Section 2 considers two different normative qualities which grand chambers can bring to their courts’ decision-making. These are not intended as empirically testable propositions, but as analytical tools to help organise and interpret the diversity of institutional practices explored in the subsequent sections. Section 3 then shows that different jurisdictions, by their institutional design and use of their grand chambers, adopt different types of grand chambers, depending on the normative qualities which the grand chambers are seeking to bring to the courts’ decision-making. It also deals with the hybridisation of the two types and their abuse. Section 4 then discusses why different jurisdictions may opt for a different type of grand chamber, linking the choice to a combination of factors concerning the court, the nature of the legal system and the prevailing legal culture within the system. Section 5 summarises the argument and sets out two essential questions that should be addressed when thinking about grand chambers.
Before proceeding with the analysis, it may be useful to clarify the term ‘grand chamber’ as used in this article. Here, a grand chamber refers to a court formation which: first, has a larger number of judges than other formations of the court; second, plays a judicial rather than administrative role in the court;Footnote 51 third, is activated through unique criteria distinct from those governing other court formations; and, fourth, carries, within its respective jurisdiction, a distinct claim to higher authority and legitimacy compared to smaller panels. This definition is relative, based on a court’s other formations, allowing a single court to have multiple grand chambers. For instance, the ECJ operates with three-judge and five-judge chambers, a 15-member Grand Chamber and a full Court of 27 judges.Footnote 52 Under this definition, both the Grand Chamber and the full Court qualify as grand chambers due to their larger size and distinct activation criteria compared to the five-judge chambers, which all share uniform criteria for their activation.Footnote 53 Thus, both the Grand Chamber and the full Court fall within the scope of this article’s analytical framework.
2. The benefits brought about by grand chambers
Compared to the smaller formations of a court, grand chambers are considered special in some sense. It is common for lawyers to point out that a grand chamber formed a certain opinion or that grand chambers are more authoritative compared to ‘mere’ chambers.Footnote 54 However, it is rarely specified why exactly these statements about a grand chamber holding a certain opinion are relevant or what justifies the presumably higher authority of these formations.
A comparative overview suggests that there are two main values which grand chambers can bring to their courts’ decision-making, which could justify their higher authority. One relates to the input, or the process by which the grand chamber is composed and makes decisions, and the other to its output, or the decisions that the grand chamber produces and the consequences they bring about.Footnote 55
2.1. Broader participation
The first reason for considering grand chambers distinctly from other judicial formations relates to their heightened capacity to secure the broader participation of judges in the decision-making process. Of all court formations, grand chambers are best equipped to ensure that individual judgments are rendered in the presence of the full bench or through a representative cross-section thereof. As such, they produce decisions that reflect the institutional will of the court rather than that of a smaller subset of its members.
The most important feature in this regard is the grand chamber’s composition. By definition, grand chambers comprise more judges than other formations of the court. Often, the judges sitting in the grand chamber are also selected in such a way that they have a certain link to the entire court, whether selection is by regular rotation, election or random draw.Footnote 56 This should ensure that the view generated by the grand chamber can be considered to reflect the prevailing view of the court better than any other formation.
Broader participation of judges in the decision-making process can be considered valuable for two main reasons. First, it can eliminate or reduce the element of chance associated with the court’s use of smaller panels.Footnote 57 This reflects a widely held belief that judicial decision-making should be the result of a dispassionate, ‘neutral’ process, free from any influence of the identity and preferences of the judges assigned to decide the case.Footnote 58 As Lord Neuberger has explained in relation to R (Miller) v Secretary of State for Exiting the European Union (Miller), the case concerning the constitutional validity of the UK’s withdrawal from the European Union (EU)—decided extraordinarily in the UK Supreme Court’s largest formation of 11 judges—‘[s]itting a full panel was important to ensure that there was public confidence in the legitimacy of the decision, particularly in the event of a close decision’.Footnote 59
Increased participation of judges can also be considered desirable from a broader political perspective. To command public confidence and maintain political legitimacy as an unelected branch of power, judiciaries often have a certain link to those whose lives are affected by their decisions.Footnote 60 Typically, this link is established through the participation of democratically elected politicians in the selection of judges.Footnote 61 Some degree of democratic input is considered important for holding the unelected judiciary to account and for ensuring that the courts are, at least in the long run, reflective of the interests and values of the societies in which they operate.
The need for democratic accountability is particularly pressing in the context of federal and international courts.Footnote 62 A significant part of the continued commitment of individual polities to federal or international justice stems from the belief that they have some form of representation within these courts and that their interests are acknowledged and considered.Footnote 63 As Tomuschat noted in relation to the ECJ, ‘States—which means governments and their peoples—must be able to trust that their legitimate concerns are taken into account with the requisite care’.Footnote 64 If international justice were administered solely by judges perceived as foreign, this could foster the perception that the system is ‘discriminatory’ or it may even be viewed as ‘a neo-colonial usurpation of basic political rights’.Footnote 65
To address this concern, States (and federal states) and their peoples are often represented in international or federal courts and have avenues through which to influence those bodies.Footnote 66 Typically, this is achieved through geographically representative compositions and by giving governments a say in the selection of judges.Footnote 67 For instance, the 15 members of the International Court of Justice (ICJ) are chosen by the United Nations General Assembly and Security Council, which are required to ensure that the ICJ judges reflect ‘the representation of the main forms of civilization and of the principal legal systems of the world’.Footnote 68 The principle of representation is also central to the composition of the ECJ and the ECtHR, where each Member State has one judge and governments maintain significant influence over judicial appointments.Footnote 69 In such an environment, the capacity of grand chambers to ensure broader participation serves as a valuable mechanism for translating the diversity and balance reflected in the court’s overall composition to the specific panel deciding an individual case.
Participation is a central concept of political thought and builds on two, in essence political, assumptions about courts and judges. One is that the identity and political background of those who decide matters, whether in reality or as perceived.Footnote 70 The other is that the view shared by a higher number, or even the majority, of a group’s members should be given a special, higher authority.Footnote 71 In this, the benefit of participation can be considered, in essence, a political type of benefit.Footnote 72
2.2. The doctrinal quality of case law
Grand chambers can also be considered valuable for improving the doctrinal quality of their courts’ case law. While what constitutes a doctrinally sound judicial output may vary across legal systems and depend on subjective preferences, certain minimum standards are generally recognised, at least within the Western legal tradition. Courts are expected to provide comprehensive explanations and justifications for their rulings, demonstrating coherence both within the decisions themselves and with the broader body of the relevant court’s case law, while remaining firmly rooted in the legal rules that they are tasked with applying.Footnote 73 Despite some ambiguity concerning these requirements, it is an inherent trait of legal practice to recognise that a court’s output can be evaluated as better or worse based on the clarity, consistency, coherence and persuasiveness of its reasoning across judgments.
There are two distinct ways in which grand chambers can improve the doctrinal quality of their courts’ case law. While this argument draws on the institutional design of, and the procedures followed by, grand chambers, these are perceived, however, not as values per se but, rather, instrumentally as features contributing to their courts reaching a substantively better outcome.
First, grand chambers are sometimes thought to be likelier to produce individual decisions with superior legal reasoning than smaller formations. A higher number of judges could bring more insight and experience to the decision-making process and reduce the chances of an important argument being overlooked.Footnote 74 Lau, for example, assesses the analysis included in opinions of the Singaporean Supreme Court’s Grand Chamber ‘to be of extremely high quality’, a fact which he attributes to the thoroughness of review and consultation among more justices.Footnote 75 Other practices aimed at improving grand chamber decisions include assigning the most experienced law clerks to these cases, conducting special in-house analyses and adding comprehensive sections in the judgments that systematically review all existing jurisprudence on the issue at hand.Footnote 76 These practices increase the likelihood that grand chamber decisions will be of a higher quality and more persuasive, ultimately contributing to the overall quality of the court’s output.
The second way that grand chambers can improve the doctrinal quality of their courts’ case law is to ensure the systematicity of their decisions. When multiple panels decide cases simultaneously, there is a danger of inconsistency—that is, reaching different outcomes in cases containing similar sets of facts.Footnote 77 Grand chambers can address this problem. By serving as coordinating bodies for addressing divergences among other chambers and by issuing decisions which are then binding on those chambers, grand chambers can bring unity to their courts’ decision-making. They can ensure that the court’s rulings are not only internally logical but also in harmony with the broader body of case law. This function is emphasised, for example, in the recent opinion of the Consultative Council of European Judges, an advisory body of the Council of Europe, according to which grand chambers are mechanisms of ‘paramount importance that … can remedy inconsistencies within [a supreme] court’.Footnote 78
The value of an improvement in the doctrinal quality of case law is self-evident. For courts, the quality of case law is a key factor underpinning their perceived authority.Footnote 79 The solutions that the courts reach must be in accordance with the law and the rules and methods of legal reasoning of the respective system. Also, consistency ensures that the rules, as interpreted by the court, form a predictable system capable of providing guidance—as required by virtually all accounts of the rule of law.Footnote 80
While the benefit of broad judicial participation is grounded in assumptions related to politics, the benefit of enhanced doctrinal quality builds on assumptions related to law, in particular the rule of law requirement that judicial decisions must be properly reasoned and that rules of the legal system ought to create a coherent whole. What matters from this perspective is not by whom or through what procedure a case is decided but, rather, the impact of the decision on the development of legal principles and the coherence of the court’s output.
2.3. The tension
In an ideal world, grand chambers would deliver both input and output benefits to their courts: they would embody the views of the entire court and issue well-crafted decisions systematising the court’s practice. However, the problem is that, in practice, ensuring both types of benefits simultaneously can be difficult. This is because the demands regarding how a grand chamber should be designed and used in order to foster one type of benefit may conflict with the ideal design and use required by the other. For example, a rotational or particularly large grand chamber may be ideal in terms of participation but, from the perspective of doctrinal quality it may be a problem. While increased participation and greater diversity of views can also benefit the quality of the court’s case law, when a judicial formation rotates or expands beyond a certain point, the individual responsibility of judges is reduced, the deliberation among judges suffers and the need to find a consensus among the larger number of judges leads to compromise.Footnote 81
The same also goes for other institutional features of grand chambers, including the types of cases they should hear, the style and reasoning of their opinions and how they should conduct their proceedings.Footnote 82 In most circumstances, no one institutional solution will fully achieve all the benefits that a grand chamber can potentially deliver. As a result, in designing and using their grand chambers, jurisdictions often have to choose which of the benefits to prioritise over others.
3. Two types of grand chambers
Section 2 argued that grand chambers can ground their higher authority in two distinct benefits—broader participation and the doctrinal quality of case law. It also argued that the two benefits are not always compatible, forcing jurisdictions to choose between them. This section shows that the main difference in how grand chambers are designed and used around the world lies in how the jurisdictions approach this tension. Specifically, it shows that, depending upon the principal task that a jurisdiction ascribes to the body, a grand chamber can follow one of two conceptualisations (Table 1): first, the collective control model of a grand chamber, which is focused on securing broad and equal participation of all the court’s judges in the decision-making process; or, second, the jurisprudential model, which is tasked with securing the doctrinal quality of the court’s case law.
Table 1: Two types of grand chambersFootnote 83
The core distinction between the two models of grand chambers lies in the benefits that they bring to their courts’ decision-making. They are grounded in reality, reflecting existing practices and institutional features, but as models they generalise to some extent. In practice, most grand chambers exhibit features of both models, a hybridisation which is addressed later in this section.
The analysis focuses on five institutional features of grand chambers: their composition; the types of cases they handle; their decision-making procedures; the characteristics of their opinions; and the subsequent use of their case law. There are several reasons for focusing on these particular features. First, existing literature highlights that the role of a judicial body cannot be understood solely by who sits on it or what cases it hears,Footnote 84 but must be considered also in the light of how decisions are reached, presented and used.Footnote 85 Second, the five features capture what differentiates grand chambers from smaller panels. Analysing these aspects therefore captures their unique role within courts. Third, the five features highlight how grand chambers differ across jurisdictions. As Table 1 and the analysis below demonstrate, courts around the world adopt varied approaches to them, enabling articulation of how one grand chamber’s role may differ from that of another. Finally, these features align with the lifecycle of judicial bodies. To have an influence, every judicial body is constituted, allocated something to decide on, deliberates on it and issues a decision, which impacts subsequent cases and decision-making. Studying all five features should provide a comprehensive understanding of what grand chambers do. The following sections explore the two models in greater detail.
3.1. The collective control model
The main function underpinning the collective control model of grand chambers is to ensure that the court’s most consequential decisions are made by all judges of the court or their representative cross-section, enabling them to exercise institutional control over how the court decides cases. The focus of these grand chambers is not on what the court’s decision looks like or what its consequences are for the court’s case law; rather, the focus is on who makes the decision and according to which procedural rules. Examples of courts with grand chambers built around this model include many constitutional courts,Footnote 86 but other courts, such as the ECJ and some higher courts in common law systems, also seem to incorporate at least some of the features of this model.
The most important feature of these grand chambers is their composition. These grand chambers mirror the composition of the entire court so that they decide, insofar as is possible, as the whole court would. The highest level of collective control occurs of course when the grand chamber is composed of all the judges of the court. This is the case, for example, with the five-member full Court at the Singaporean Supreme Court,Footnote 87 the 11-member plenum of the Brazilian Supreme Federal CourtFootnote 88 and the 27-member full Court at the ECJ.Footnote 89
However, a grand chamber can ensure broad participation and collective control even when it includes only some of the judges of the court. One way of achieving this is through a random draw. At the Supreme Court of Norway, for example, the Grand Chamber includes 11 of the Court’s 20 judges: the chief justice and ten other judges who are selected by lot on a case-by-case basis.Footnote 90 This method draws on a simple statistical assumption that a randomly selected sample (the grand chamber) should reflect the characteristics of the entire population (the court). Another way of realising collective control is by vote. At the Supreme Court of Taiwan, for example, the Grand Chamber consists of 11 judges: a divisional chief judge; a member of the panel submitting the case to the Grand Chamber; and nine judges elected by and from the members of the Court for a two-year term in the Grand Chamber.Footnote 91 The presumption here is that elections allow the judges of the court to express their preferences and, through that, to influence how the Grand Chamber is composed and, thus, also how it decides.
The second important feature of this type of grand chamber concerns the types of cases it is called upon to decide. Typically, these grand chambers decide highly publicised issues that are politically or otherwise sensitive, and where differences in values between the judges may matter most. A typical example of such a case would be Miller, mentioned in Section 2.1, in which the UK Supreme Court ruled on the UK’s constitutional process for exiting the EU—doing so, extraordinarily, in a panel comprising 11 of the Court’s 12 judges.Footnote 92 The reason for using the Grand Chamber in this case was not necessarily to develop the law for subsequent cases—Miller was a unique, politically sensitive case. The reason for using the Grand Chamber was to ensure that the particular judgment would be seen as representing the opinion of the entire Court, not the opinion of a mere chamber.Footnote 93
There are three different ways in which these politically salient cases can be selected. In some jurisdictions, selection is left to the discretion of the court’s president or a senior member, as is the case at both the UK Supreme CourtFootnote 94 and the Israeli High Court of Justice.Footnote 95 In other jurisdictions, political importance is determined categorically by law. In the Brazilian Supreme Federal Court, certain inherently sensitive matters, such as constitutional review of legislation or high-ranking State officials’ impeachments, are reserved for the plenary session.Footnote 96
The third available method is to apply the principle of collective control to case selection and let the majority of the court decide which cases are important—and so should be heard by the grand chamber—and which can be decided with finality by a smaller panel. This ‘democratic’ case selection can be carried out early in the proceedings before a case reaches the panel stage. At the ECJ, for example, cases are allocated to different formations by means of a vote at a general meeting of all Court members.Footnote 97 Collective control may also occur ex post. At the US federal courts of appeal, for example, after a panel delivers its decision, any judge of the court can call for all the judges of the court to vote on whether the case should be reheard in the grand chamber (the so-called en banc rehearing).Footnote 98
This democratic mechanism for selecting grand chamber cases is conceptually important. It renders the grand chamber a tool in the hands of the court’s majority, allowing that majority to directly control what the court does, at least in select, important cases. At the same time, it can make it hard for the court to develop a clear vision as to the category of cases that should be selected for the grand chamber. Besides general importance and some appeal to the majority of the court, the collective and non-objective nature of the decision-making can make it difficult to understand why certain cases are selected while others are not.
Crucially, the emphasis on broad judicial participation does not disappear during the process of deliberation. On the contrary, the goal in these grand chambers is to ensure that all judges in the formation, and sometimes also those outside the formation, can meaningfully influence the result. For example, in addition to the ECJ’s consensual style of deliberation when issuing a single decision without separate opinions, it also ensures that drafts of Grand Chamber decisions are circulated to, and may be commented on by, all 27 judges of the court, whether or not they were selected for the rotational 15-member Grand Chamber.Footnote 99 A similar practice is also followed by Canadian appellate courts.Footnote 100 The goal is always the same: to ensure that the grand chamber truly speaks for the entire court.
Unlike the issues of composition, case selection and deliberation, the content of grand chamber decisions and their impact on subsequent cases are of secondary importance in this model. The large size or constant rotation in these grand chambers may even force judges to compromise on the quality of their reasoning. For example, some commentators suggest that the ECJ’s 15-member Grand Chamber often produces unclear and inconsistent decisions as a result of these factors.Footnote 101 A similar criticism is also made of the en banc courts in the US federal courts of appeal, which usually comprise all the judges of the court.Footnote 102 Reflecting on his 30 years of experience with the latter system, Judge Kaufman has noted that en banc decisions frequently produce ‘either a majority opinion that was crafted in a purposefully vague manner to forge a consensus within the court, or a litany of diverging opinions, injecting a degree of uncertainty into the law’.Footnote 103
Another limiting factor on their precedential value is that the high political stakes involved in grand chamber cases often force the court to resort to incrementalism—deciding the individual question without openly addressing the broader question of principle.Footnote 104 After all, as a leading book on the topic suggests, incrementalism ‘makes a good deal of sense when the Court is dealing with a constitutional issue of high complexity about which many people feel deeply and on which the nation is divided on moral or other grounds’.Footnote 105 These are precisely the characteristics of the cases that are heard by a grand chamber based on the collective control model.
Finally, the decisions of these grand chambers may also have limited influence on their courts’ subsequent case law. For one, poorly reasoned decisions often create uncertainty about their exact consequences beyond the case at hand. Returning to the example of the ECJ, some note that ‘the status of Grand Chamber decisions as authority [in the ECJ’s subsequent decision-making] is questionable and the weakness in reasoning may be a factor’.Footnote 106 Also, the ruling of a grand chamber may not necessarily be the final word. As the role of the grand chamber is to give effect to the view of the majority of the judges at the court, a change in the court’s composition may imply a change in the grand chamber’s stance on the issue. Given this, it has been said that changes in the partisan identity of the majority at the US federal courts of appeal are often followed by ‘sharp and unsettling shifts in the law’, motivated simply by political disagreement with the court’s previous case law.Footnote 107 Finally, the relevance of grand chamber decisions for other, more routine cases decided in chambers may be limited. Precedents set in extraordinary cases, such as those concerning presidential impeachment or Brexit, are rarely applicable in day-to-day practice.
While all this could be problematic from the perspective of the quality of the court’s output, from the perspective of procedural or input legitimacy this is not a problem. The primary role of this type of grand chamber is to allow the majority of judges to control the most important decisions, not to ensure broader coherence or produce especially well-reasoned judgments. Compromises and sensitivity to political shifts are features, not flaws, of these bodies. Their legitimacy stems from which judges decide the case, not the substantive quality of the result.
3.2. The jurisprudential model
Grand chambers of the second type differ from those of the first in that their primary objective is to ensure the doctrinal quality of their courts’ case law. This model is typically seen in civilian supreme courts, such as the German Bundesgerichtshof and the French Cour de Cassation.Footnote 108 However, the model’s features can also be found elsewhere, including in the ECtHR.
One of the key features of this type of grand chamber is the types of cases which it hears. Unlike under the collective control model, in which cases are selected from the external perspective of political importance, grand chambers operating under the jurisprudential model adopt an inward-looking approach based on scrutiny of the court’s own work. By default, the decision-making within the courts with this type of grand chamber tends to occur at the level of the chambers. The grand chamber then serves as a second-level arbiter in the event of conflicts, challenges or uncertainty in the ways in which chambers interpret or apply the law.
The Supreme Administrative Court of Czechia provides a good example. According to the Czech Code of Administrative Procedure, a case should be submitted to the Grand Chamber if, and only if, ‘a panel of the [Court] has in its decision arrived at a proposition of law which differs from the proposition of law already expressed in a previous decision made by the [Court]’.Footnote 109 The key criterion here is case law divergence, which may arise either when a panel intends to deviate from the court’s previous consistent case law (anticipated divergence) or when the panel comes across a conflict within the case law and cannot decide the case before it without deviating from one of the conflicting decisions (detected divergence).Footnote 110 A similar practice is also followed in the Federal Supreme Court of SwitzerlandFootnote 111 and Austrian Supreme Court of Justice.Footnote 112 The focus here is strictly on the interpretation of legal rules, not on the decision in an individual case or the societal importance or political sensitivity of the issue at hand.
The rationale of this bottom-up, problem-based approach to selecting grand chamber cases contains three elements. First, it ensures that the court departs from its previous case law in a transparent manner. This helps to signal to actors both internal and external to the court that the court is changing its case law, which contributes to the clarity and consistency of its reasoning. Second, by submitting to the grand chamber those issues for which it has proved difficult for the court to arrive at a uniform solution, the mechanism allows the grand chamber to act as a body revising the work of the chambers. This helps the grand chamber to focus on legal issues that need clarification or improvement. Third, ruling in principle only after chambers have addressed certain issues may give the grand chamber the benefit of hindsight. It ensures that the grand chamber will decide in a situation in which multiple arguments have been proposed and discussed, and when external actors, including politicians and academics, have had an opportunity to react and express their views. All this allows the grand chamber to issue a more informed and presumably more enduring decision than the chambers, thus contributing to the doctrinal quality and stability of the court’s case law.
Another important feature of these grand chambers is their judgments, in terms of both their appearance and their effects. Judgments of these grand chambers tend to be distinct from the rest of the court’s output. They are written openly, identifying possible conflicts, systematising the court’s existing case law on the issue and indicating the preferred way forward. As the former President of the Czech Supreme Administrative Court said, the content of the Grand Chamber’s decisions ‘is not reduced to mere answering of the contentious legal issue, but it provides extensive analysis summarising all important arguments’.Footnote 113 The ambition of a grand chamber to range more broadly and delve more deeply in its analysis is also clearly visible at the ECtHR, where the Grand Chamber’s opinions are much longer than those of the chambers and often include extensive comparative sections and a comprehensive overview of the existing case law.Footnote 114 These efforts are usually supported by extensive analyses prepared by the court’s research departments specifically for the Grand Chamber.Footnote 115
In the drafting of the judgment, the emphasis is again on the quality of the output, not the inclusivity of the process. At the ECtHR, for example, the central task of the deliberation and drafting in Grand Chamber cases does not happen in the 17-member judicial body—that would be too unwieldy. Instead, in Grand Chamber cases the court employs a ‘drafting committee’ composed of five judges who are the strongest proponents of the solution that the Court intends to take.Footnote 116 While this might come at the expense of the input of the remaining judges in the Grand Chamber, who are responsible only for indicating the general direction of the judgment and then voting on the draft prepared by the five-judge committee, in terms of performance a group of five is close to the ideal number for drafting.Footnote 117
Other performance-enhancing procedural devices employed by grand chambers based on the jurisprudential model are information-gathering and involving experts in the process. When sitting in the Grand Chamber, the Supreme Court of the Slovak Republic may ask the Attorney-General, the Ministry of Justice and—in most cases—law faculties about their views on the issue at hand.Footnote 118 In Croatia, the Supreme Court of the Republic of Croatia can ‘invite eminent scientists and experts in a specific legal field to participate in the meeting [of the Grand Chamber]’,Footnote 119 and in Singapore, the ‘high standard’ and the ‘requisite international outlook’ of Grand Chamber judgments in the field of international commercial law is ensured by the possibility of including ‘international jurists of renown across the common and civil legal traditions’ in the decision-making process.Footnote 120
Crucially, the solutions adopted by these grand chambers are then considered binding on smaller chambers, as this is the only way to ensure that the grand chamber fulfils its systematising role. While this may be a matter of judicial practice, in some jurisdictions, such as Slovakia and Croatia, the binding nature of the Grand Chambers’ output is even stipulated in law—a feature that could be considered quite exceptional considering that judicial decisions in these jurisdictions are generally not formally binding on subsequent decision-makers.Footnote 121
The final institutional feature helping to facilitate the mission of these bodies is the grand chamber’s composition. Grand chambers based on the jurisprudential model tend to include a stable, selected group of judges comprising senior members who are the presiding judges in the smaller chambers. The Grand Chamber of the German Bundesgerichtshof (Federal Court of Justice) offers an example, as it includes the president of the Court and a member of each chamber of the particular division.Footnote 122 At the French Cour de Cassation, the Grand Chamber includes the president of the Court, the section presidents and the most senior members of the Court.Footnote 123
Composing grand chambers in this way brings several benefits in terms of output. First, not including all judges limits the size of the body to a reasonable (or, at least, acceptable) number. From a comparative perspective, the ideal size of a judicial formation for deliberation seems to lie somewhere between five and 11 judges.Footnote 124 On larger benches, individual judicial responsibility diminishes, deliberation suffers and the need for consensus among a greater number leads to compromised reasoning.Footnote 125 Limiting participation in the grand chamber to only certain judges may address this problem, at least partially, when compared to a potential bench comprising dozens or even hundreds of judges. What is more, judges chosen for these grand chambers are often not just ‘ordinary judges’ but are considered among the most senior and reputable within their courts, based on the standards or selection criteria specific to their jurisdiction. This is particularly important in international courts, where it has been observed that judges’ command of the law and language skills can vary, with court or chamber presidents typically being among the most proficient.Footnote 126 Bringing such figures together in the grand chamber is likely to improve the doctrinal quality of the court’s pronouncements.
Second, judicial bodies with a relatively stable, non-rotational membership may find it easier to decide cases in a predictable and consistent manner over time.Footnote 127 It is a familiar and essential trait of many courts that judges work in a collegial manner and are routinely exposed to each other’s views. Over time, a permanent group of judges becomes familiar with the issues being brought before the court, and the deliberative dynamics give everyone an insight into the stance of the others on points of principle. Judges:
need to be able to have full and frank conversations; to see each other, to hear each other, and to sit together again the next day or next week, and the weeks after that. Only through a manageable collegiate structure can a judicial body hope to pull together the threads of a coherent jurisprudence; to maintain them; and to work into that pattern the new legal questions, and solutions, that will continue to arise.Footnote 128
Stable, non-rotational grand chambers composed of selected judges can bring out this benefit.
Finally, having a judge from each chamber of the court in the grand chamber facilitates the coordination and mutual awareness of the two decision-making levels. Whatever happens in the grand chamber is then known about in the chambers and vice versa. This facilitates the unifying function of these grand chambers.
3.3. Hybridisation and abuse
The article has thus far described two contrasting models of grand chambers: one focused on the equal participation of all court judges, the other on the doctrinal quality of the court’s case law. In practice, however, grand chambers may combine elements and rationales of both models. An example of such a grand chamber is that of the ECtHR. While it is not possible to describe the body in detail here,Footnote 129 it suffices to say that, in terms of composition, it has 17 members, with part of the body permanently made up of the presidents of the Court’s five sections, while the remaining seats are filled through a random draw. As for its docket, the Grand Chamber may be seized either through relinquishment by a chamber or via an internal appeal following a chamber judgment, with the possible grounds for seizing the Grand Chamber being the importance of the case as well concerns about the quality and consistency of the Court’s case law.Footnote 130 This suggests that the body’s goal is not just to ensure a degree of participation but also to maintain the doctrinal quality of the Court’s case law.
Moreover, even those grand chambers that are largely based on one of the two models can also deliver, at least in part, the benefit underlying the other model. By having a monopoly on cases in a certain sensitive area of law—say, impeachments or disputes between constitutional organs of a system—the collective control model of grand chambers can ensure continuity and coherence in that area of law, however imperfect or limited it may be. A grand chamber based on the jurisprudential model may also possess a certain representative quality, either because its members are elected to their positions by their colleagues or because these grand chambers, while relatively small and composed of hand-picked judges, are still larger than any other chamber of the court, and thus arguably more representative of the whole court. After all, while grand chambers may lean toward one source of legitimacy—input or output—the realisation of a minimum threshold of the other objective may be necessary for them to sustain a broader claim to judicial legitimacy. It would be difficult to accept a grand chamber operating under the collective model that provides no reasoning for its decisions, just as it would be problematic for a jurisprudential model of grand chamber to be composed exclusively of politically aligned judges.
All of this has important implications for how the two models and their underlying objectives should be used for analysing the role of grand chambers. The models should be understood not as two exclusive categories requiring a binary choice—either input or output, politics or law. They should be used as two ideals that grand chambers can fulfil to a greater or lesser degree. Participation can range from the full direct involvement of all judges to a more indirect or limited realisation of that ideal through rotation, draw or a vote. Likewise, the doctrinal quality of a grand chamber’s case law can vary in degree compared to that of smaller chambers, and its systematising influence may extend across the scope of the court’s jurisdiction, or it may, instead, focus on select areas of law.
To capture the role of a grand chamber with all its nuances, it is necessary to bear this in mind. While it may be impossible for courts to fully realise input and output objectives simultaneously, the two objectives can be combined and balanced against each other. The question to ask regarding grand chambers is, therefore, not which of the two objectives a grand chamber achieves in its decision-making, but the extent to which a grand chamber achieves each objective, with the answer in each case lying along a spectrum.
The second lesson which hybrid grand chambers offer is that not all grand chambers have the same degree of legitimacy. As explained in Sections 3.1 and 3.2, each model has a distinct source of legitimacy and a certain inherent logic. Each also provides certain safeguards against abuse. The collective control model allows the grand chamber to be used flexibly, allowing for the possibility of any case that the court hears being selected for the grand chamber, especially politically sensitive cases. This strength of the grand chamber is grounded in the collective and inclusive nature of the body stemming from the fact that: first, all judges of the court determine which cases are selected for the grand chamber; and, second, the view expressed by the grand chamber has a strong link to all the court’s judges. This is important because it prevents potential abuse of this formation of the grand chamber. The imperative of broad and equal participation makes it impossible to hand-pick judges for the body and, through them, affect the direction taken by the court in all, or at least the most, sensitive cases.
‘Stacking’ a grand chamber with favourable judges is much easier under the jurisprudential model. All a would-be autocrat needs are a few of their ‘own’ judges at the court and a willing court president, or whoever is responsible for selecting those permanently sitting in the grand chamber.Footnote 131 Through these means, the autocrat can construct a loyal grand chamber majority just by reshuffling a few names in the court’s internal documents.Footnote 132 The safeguard here, however, is that this type of grand chamber, in its pure version, cannot legitimately focus on all the court’s cases, but only on those in which there is some problem with the coherence or consistency of the court’s case law—a criterion for referral that is often set out in law.Footnote 133 This means that this type of grand chamber cannot select its desired cases based on their political sensitivity, but rather is limited to cases where there is an identifiable legal issue .
Therefore both models balance how hard it is to stack the extended formations with how much can be gained by doing so. Higher stakes require more effort (basically stacking the entire court) and lower ones less. What follows from this is that, where aspects of both models are present, losses in terms of one of the benefits need to be justified by improvements in terms of the other. This means that the stronger and more flexible in selecting cases a grand chamber is, the more collectively controlled it must be. The same logic applies the other way round: the more some judges are sidelined from the grand chamber, the more this must be justifiable in terms of improving the quality of the court’s case law.
In this respect, therefore, grand chambers that are comprised of unrepresentative (hand-picked) judges who can be assigned to any case that the court hears with considerable flexibility are problematic. An example of such a body can be found in the Kúria (Supreme Court of Hungary), where the Grand Chamber is composed of politically loyal judges which—despite being called the ‘uniformity complaint panel’—can ‘annul any decisions of the ordinary panels of the Kúria’.Footnote 134 This is problematic because such a Grand Chamber is neither representative of the court nor focused on improving the formal aspects of the court’s case law. As Vincze observed, ‘this special remedy serves to control or even micromanage the decision-making of the Kúria’ and ‘foster[s] conformity at the expense of other virtues of the judiciary’.Footnote 135
A similar body, called the Chamber of Extraordinary Review and Public Affairs, was also created at the Polish Supreme Court.Footnote 136 This body, composed of seven judges appointed by the newly created and government-loyal National Council of the Judiciary, was given sweeping competences regarding the judiciary and the Supreme Court.Footnote 137 Among other things, it could revise any legally binding judgments of the Supreme Court by way of ‘extraordinary control’.Footnote 138 It was also given the exclusive power to decide on electoral disputes.Footnote 139
These ‘Frankenstein’ grand chambers—combining elements of different models without respecting their overall logic—represent an abuse of grand chambers.Footnote 140 Without proper justification, they effectively allow the government to influence the result in the most sensitive cases by channelling them to select loyal judges.Footnote 141 The grand chamber in this form proves to be yet another institution that can be subject to abusive constitutionalism—a technique undermining democratic institutions by seemingly legitimate legal means.Footnote 142
4. Choosing a grand chamber model
Section 3 has demonstrated that viewing grand chambers as uniform bodies with a single purpose is too reductive. Grand chambers differ in many important respects, gravitating towards input or output legitimacy or a combination of the two. This section aims to explain why different jurisdictions may prefer one particular type of grand chamber to another.
Admittedly, trying to explain grand chambers is difficult. The features of grand chambers are often formalised only in part; to a large extent, they are a matter of informal judicial practice.Footnote 143 This means that the establishment and use of these bodies are often determined by a complex set of factors, idiosyncrasies and historical path dependencies. Especially influential in this regard are the chief judges responsible for managing the courts through formal as well as informal means.Footnote 144 At the ECJ, for example, the use of the Grand Chamber and/or full Court substantively changed when the current president, President Lenaerts, took over from President Skouris in 2016. While under President Skouris the Grand Chamber and/or full Court were used relatively rarely (around 45 cases annually), under President Lenaerts the activity of the bodies exploded (reaching 83 cases per year in 2021)—a change which members of the Court have explained as the result of the different visions of the two presidents for the body.Footnote 145 Any generalisations leaving out such idiosyncrasies in the use of grand chambers are necessarily incomplete.
Nevertheless, it is still possible to hypothesise in relation to some factors that may help to explain why jurisdictions design and use their grand chambers as they do. A triple-layered framework is suggested (Table 2), comprising factors relating to: the organisation of the court; the court’s sociolegal context; and the legal-cultural assumptions underpinning the respective legal system. Each layer’s relevance is discussed in turn.
Table 2: Factors for choosing a grand chamberFootnote 148
4.1. The organisation of the court
First, in choosing a grand chamber model, several features concerning the court’s organisation seem to be relevant. One important issue is the court’s size.Footnote 146 In a large civilian-type court of around 120 judges with thousands of cases to decide every year, consistency of decision-making is a perennial problem.Footnote 147 There, the need for a mechanism for unification is particularly strong. This contrasts with smaller courts, such as the UK Supreme Court, which has 12 judges deciding around 100 cases per year, and where the need to secure unity is less pressing.Footnote 149
The types of cases the court deals with may also matter. While, in theory, any application of law might require a value judgement to be made, in practice, there are issues where the personal values of judges are more consequential for the result. In a values-based agenda where human rights or issues related to ‘mega-politics’Footnote 150 have to be determined, the identity of those who make the decision matters very much.Footnote 151 Accordingly, the desire for broad and equal participation may be high. By way of contrast, a more ‘technical’ agenda, where the difficulty lies mostly in acquiring specialist knowledge and dealing with complexity, could require a formation capable of providing extra performance and consistency rather than collective control.
Finally, the existence or lack of specialisation within the court also appears to be important.Footnote 152 In courts that are organised around specialised chambers focused on particular areas of law, such as the German Federal Supreme Court, some important choices have already been made.Footnote 153 There are groups of experts focused on, and ultimately responsible for, certain areas of law. Collective control, clearly, is not the main concern for these systems; rather, consistency and expert knowledge are. The only problem then is the coordination of these narrowly focused groups in the event of overlap and conflict, leading to a grand chamber based on the jurisprudential model.Footnote 154 By contrast, in more generalist courts where all panels decide all types of cases, the choice of the grand chamber model seems to be more open.
4.2. The sociolegal context
Grand chambers also seem to reflect the broader sociolegal context in which they operate. Two aspects, in particular, appear relevant: first, the composition of the judiciary; and, second, the political power wielded by the court. When the judiciary is relatively homogeneous, the risk of a judgment issued by a subset of judges that does not align with the views held by the majority of the court tends to be lower. In many civil law countries, such as France and Spain, most judges are trained, like-minded bureaucrats selected after rigorous post-law school training.Footnote 155 In such environments, issues concerning the composition of the bench for a particular case may be less of a concern. This contrasts with some common law countries, most notably the US, and international tribunals, where the judiciary tends to be more diverse and judicial appointments are often openly political.Footnote 156 In such contexts, the identity of the decision-maker takes on greater significance, highlighting the importance of inclusivity in constituting the panels for decision-making. A similar divide might also apply between courts in unitary States, where representation on the court and its panels might be less critical, and courts in federal systems, which are often designed with a focus on some representation of the subnational units.Footnote 157
Equally important are the effects of the court’s decisions. It is a well-established observation that the greater a court’s political influence, the more the system’s key political actors seek to exert control over it.Footnote 158 This also holds true in an international setting. According to Hirschman’s theory, developed for the European context by Weiler, supranational organisations must strike a balance between their powers and the degree of influence that States can exert on their decision-making.Footnote 159 The more authority an international organisation has to issue binding obligations on States, the more say the States need to have in the organisation for them to accept it. Consequently, in a system where a court can directly and generally issue binding rulings on politically sensitive matters, the representation of the main political actors in the process becomes crucial. Conversely, in courts whose decisions have more limited, advisory or inter partes effects, the need for the representation of different interests in their decision-making is less pronounced.
4.3. Values and visions
Besides the objective factors discussed so far, how grand chambers are constructed and used may also reflect the values and visions underpinning the legal system. Choosing a particular design for an institution first requires answering which of the institution’s potential goals is deemed the most valuable.Footnote 160 With regard to grand chambers, one could ask, for example, which kind of legitimacy is considered more important—input political legitimacy, brought about by the process of decision-making, or output-based legitimacy, linked to the doctrinal quality of case law? If both, which should be preferred in the event of a conflict?
There is no definitive answer to this question. How the system and its actors approach it depends upon their deeply held assumptions about the nature of law and the task of judging.Footnote 161 For systems based on a more formal vision of law, under which law is perceived as a system of logically consistent rules that can be professionally identified and applied without requiring an ethical or moral evaluation, the jurisprudential type of grand chamber could have greater appeal.Footnote 162 As a leading study of form and substance in legal systems puts it, using panels in which not all the judges of the court sit reflects a formalist ‘belief that it is largely immaterial which judges hear which appeals’.Footnote 163 The main danger of using panels from this formalist perspective is inconsistencies in the legal system.
In legal systems with a more substantive vision of law—where the law is seen as inherently linked to politics and where it is acknowledged that the identity and values of those applying the law influence judicial decisions—the collective control model may be more appealing.Footnote 164 It ensures that, at least on the most important issues, the court’s decisions are not determined by a select few judges of the court but, rather, by the political balance underpinning the court.
This represents one of the most important yet overlooked aspects of grand chambers. In adopting a grand chamber model, each legal system implicitly or explicitly takes a stance on fundamental jurisprudential issues, such as the nature of law, the relationship between law and politics and the values that a legal system should promote. Studying grand chambers reveals insights not only into courts as institutions but also into the underlying assumptions and visions of each legal system.
Consider, for example, the ECJ, a court typically regarded as a prototype for a supranational institution that largely transcended the intergovernmental logic under which the identity and interests of individual Member States mattered.Footnote 165 This view of the ECJ is correct only to a degree. A more accurate description would note that the Court: utilises a highly inclusive Grand Chamber and/or full Court, which is composed of 15 (Grand Chamber) or all 27 judges (full Court) of the Court, with the 15-judge panel being selected on the basis of equal rotation or a vote; allocates cases to its formations by a collective decision of all Court members in the general meeting; and follows a consensual style of decision-making in which all members of the Court can meaningfully influence the result.Footnote 166 While all these features are potentially detrimental in terms of the Grand Chamber and/or full Court’s contribution to the doctrinal quality of the ECJ’s case law,Footnote 167 they make the Grand Chamber a mechanism through which all States can equally influence what the Court does in the most sensitive cases. From this perspective, the ECJ still relies on a strong intergovernmental, diplomatic element in its structure, putting politics and representation above performance and quality of the case law.
5. Conclusion: towards a better understanding of grand chambers
Grand chambers wield considerable powers within their respective courts. They assert a higher authority than other court formations, claiming the right to have the final say on the most contentious issues within their jurisdictions. Surprisingly, the importance of grand chambers has not been accompanied by a corresponding level of scrutiny. This article has argued that such attention is not only warranted but necessary, as these bodies play an active role in shaping the legitimacy of the courts to which they belong.
The second point this article makes is that grand chambers need to be approached with greater precision. It is not enough to say that the role of a grand chamber is to issue more authoritative decisions. The framework developed in this article forces us to be more precise and to ask why they are more authoritative. Similarly, it is not enough to claim that a grand chamber allows for a broader participation or that it provides unity in the court’s case law without specifying the extent of participation or the part of the court’s decision-making which is influenced and systemised by the grand chamber. Two grand chambers can both allow for broader participation but to different degrees. Capturing the influence of a grand chamber through the models developed in this article should provide a way to describe divergences that have thus far remained hidden.
Third, it is clear that, beyond the usually analysed features of composition and case selection, a fuller picture of the role of grand chambers requires us also to study the process through which grand chambers decide their cases, the decisions they issue and the use made of their decisions in subsequent cases. Moreover, as all these features are often not (entirely) determined by legal rules, but depend also upon judicial practice, it is necessary to scrutinise both rules and practice.Footnote 168
Finally, the article also calls for the complexity of grand chambers to be appreciated and for them to be analysed from the perspectives of both law and politics.Footnote 169 It is, of course, entirely possible to criticise a grand chamber from the perspective of its limited contribution to the doctrinal quality of case law or for imposing a hierarchy; the critique, however, should always appreciate that the legal and political aspects are connected and that it is often impossible to have a body with ideal legitimacy in both these perspectives. Grand chambers often require trade-offs.
The goal of this article has not been to suggest which of the two models is better. Rather, the aim was to provide a deeper understanding of the choices that different jurisdictions make regarding their grand chambers and to identify the assumptions underlying them. This could then lead to the formulation of more specific questions that need to be addressed when establishing grand chambers. Accordingly, the article concludes with two questions that deserve careful consideration in every legal system and can lead to a more conscious and effective use of grand chambers. While these questions are defined within the context of this article, their relevance is much broader.
First, to what degree is participation in judicial decision-making considered a valuable ideal? In other words, how much is gained or lost in terms of authority when a more or less inclusive formation of judges renders a decision? As the preceding discussion has shown, some grand chambers are built on the assumption that participation matters a lot. They allow for a high degree of participation despite the potential negative consequences of such participation. An emphasis on participation is understandable, especially in international or politically divided societies.Footnote 170 At the same time, the grip of political actors in many systems over the courts has been relaxed in the last couple of years, even in some international settings.Footnote 171 This would suggest that political representation on courts, and thus also the value underlying broad participation, may be less critical than it once was. This first question, therefore, raises a key issue, which is the extent to which, considering the nature of the particular legal system, the identity and number of judges who delivered a decision have an impact upon the authority of that ruling. Much will depend on perceptions on the ground and on a broader societal perception of courts.Footnote 172 To determine whether the assumptions about the high value of participation underpinning such grand chambers as that of the ECJ hold true, a more systematic study of perceptions is needed.Footnote 173
The second question builds on the first: regardless of the value placed on judicial participation, how much of it should be sacrificed in order to ensure more consistent and higher quality case law? In other words, what is the ideal balance between these two values? This is not an easy question to answer. The challenge lies in the fact that the values of improved political input and legal output are incommensurable—they cannot be directly compared.Footnote 174 Yet it is precisely this balance that needs to be discussed and decided when grand chambers are construed and used. While there may be no correct answer, the decision should be a conscious and informed one. If one recognises the cost that broad participation imposes on the doctrinal quality of the court’s case law and still prefers a highly inclusive and representative grand chamber, that is a legitimate choice—but it must be a deliberate and well-considered one.
This is perhaps the most important point concerning grand chambers. Grand chambers are not merely technical formations designed to improve court efficiency. They are bodies built on strong normative assumptions and contentious choices. They form a microcosm of broader questions about the relationship between law and politics, the character of legal systems and the nature of judicial authority. Any serious discussion about designing and using grand chambers must engage with these deeper normative issues.
Acknowledgements
The research leading to this article received funding from the European Research Council (ERC) under the EU’s Horizon 2020 research and innovation funding program (INFINITY, Grant No 101002660).
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