All Power to the Judges? Three Questions, Three Paradoxes

Abstract

The phenomenon that we want to address is a supposed ‘Americanization of European Law’ (Kagan 1997 and 2007, van Waarden 2009). In order to be able to determine whether there is such a trend, one would have to identify first what is so specific about American law or the American legal system, i.e. what would make for an ‘Americanization’. I would argue that what is so specific about the American legal system is not only and so much a specific mode of lawyering - originally identified as ‘adversarial legalism’ by Kagan (1997, 2001) - but broader, an increasingly important role of legal professionals - lawyers and judges - in society, in the economy, and in politics. Many decisions and choices in civil society, in business, and in politics, are made by them, directly, or indirectly (as advisors). In the US even the outcome of presidential elections has been decided by a court rather than the voters. Hence, an Americanization of European law would be synonymous with ‘more power to the legal professionals’, in society, the economy, and in politics. That is, the emergence of a ‘juristocracy’ (Hirschl 2007) or ‘lawyocracy’ (Van Waarden 2004).