Courts as Consiglieri: Advisory Opinions in a Comparative Constitutional Perspective

Abstract

Courts in many jurisdictions, whether national or international, contribute to the process of constitutional law-making, not just by exercising their traditional adjudicative powers, but also as advisers. Several well-known contributions to European or domestic constitutional law are laid down in advisory opinions. And yet judicial advice-giving remains highly controversial. Much of the debate focuses on ‘advisory opinions’ as a doctrinal concept. We argue that this focus is too narrow. It does not fully capture the rich variety of judicial advice-giving. It moreover leads to a static approach of the concept: ignoring the different contextual and institutional settings in which judicial advice is requested. Instead, we advocate a broad, functional approach which is rooted in an understanding of judicial advice-giving as a communicative act by which courts contribute to the process of law-making on the basis of judicial authority and persuasion. This focus on judicial advice as a social construct, rather than just a legal concept, allows us to conceptualize judicial advice-giving on the basis of three variables: the functions advice may play in the process of law-making, the types of advice involved, and the different institutional modes of judicial advice. We then briefly discuss the historical development of judicial advice-giving, zooming in on the main concerns that have inhibited some jurisdictions from embracing the practice: separation of powers and judicial independence. By connecting function to content and form, we attempt to show that the normative evaluation of judicial advice-giving requires a nuanced approach, moving beyond the binary question whether or not advisory opinions can be squared with the judicial function in a liberal democracy.