The introduction of the book has two purposes. First, it explains why a normative theory of ECJ procedural and organisational law is needed. It puts forward three reasons: first, procedural and organisational design involves making important choices on the role of courts in society; second, the dominant normative approach to assessing the ECJ’s work, namely the focus on its methods of interpretation, faces a number of conceptual problems; and third, ECJ judicial reform is of great practical relevance and requires normative anchoring. Secondly, the introduction explains the empirical strategies the book pursues to investigate the ECJ’s inner workings. In particular, it explains how requests for access to adminstrative documents and statistical analysis is used in the book to get a better understanding how the ECJ’s procedural and organisational rules are applied in practice. Finally, the introduction summarises the core of the book’s argument.

This chapter sets the stage for the research endeavor by providing the main research questions and puzzles that the book addresses. The theory briefly described in the introduction, but detailed in the subsequent chapters, explains the relationship between judicial selection, judges’ individual choices and the decisions of the court as a whole.

The increased judicialization of politics over time has rendered the institutional design of courts both contentious and significant. As courts play a larger role in shaping policy, citizens and policymakers increasingly grapple with the powers of courts, selection of their judges, and their role in society in both backsliding and more established democracies. Despite claims that independent courts are important for governance and the separation of powers, politicians, past and present, often seek to control the powers of courts and judicial selection to seemingly control policy outcomes. At times, politicians successfully manipulate these two facets of courts to achieve their own ends. At other times, the composition of political actors and public sentiment as well as the strength of certain courts defies such blatant methods for controlling courts.

The publication of a dissenting judgment is overt evidence of judicial disagreement and judicial difference. This chapter starts to explore the factors that underpin this judicial difference. Drawing on a method of content analysis of legal judgments grounded in theories and techniques from psychology, this chapter highlights the values that underpin decision making and disagreement in the High Court of Australia. The value analysis provides an insight into division in the High Court reframing the discussion of dissent from differences in understandings of the law to differences in the values espoused and affirmed by the individual decision maker. Rather than a binary decision between one outcome and another, value analysis of the judgments frames judicial decision-making as a nuanced balancing of competing value(s) by the individual Justices. In doing so, the chapter presents a value-decision paradigm with differential patterns of values expression associated with opposing positions in hard cases. Value expression provides an element of consistency in decision making across these difficult cases, but the analysis of values also highlights the complex nature of the High Court decision-making process and the many factors that may influence the final outcome.

This volume explores a new topic in comparative constitutional law: towering judges. It covers nineteen judges (from fourteen jurisdictions) who made a significant impact on the trajectory and development of constitutional law in their societies. Some of these judges became well-known public figures, cultural icons, or political leaders. Some acted in crucial moments in their country's constitutional history or led their court in a new direction. Others acted in less fraught times and were known primarily within the legal profession for their intellectual brilliance and judicial craft. All of them, however, were able to shine individually to an uncommon degree in a profession where individualism is not always looked on favorably.

Equipped with a vocabulary to do justice to the performative dimensions of social scientific knowledge production, this chapter revisits the controversial study of sentencing disparities introduced in Chapter 1. Here, I emphasize the performative effects of statistical forms of ordering and analysing judicial decision-making. What are the consequences of treating judicial cases as bundles of legal and social characteristics? How is the promise of “equality before the Law” operationalized? How is the law itself reconfigured as a result of this analysis? What kind of population – of cases, of individuals – does this analyses presuppose? Together, these questions bring us closer to zooming in on a crucial performativity of social-scientific accounts of judicial practices, especially those assisted by quantitative measurement and statistical analyses. Disaggregating cases into case- and defendant “factors” and portraying criminal law as a machine distributing justice over an internally stratified population, this approach produces a reality the judges do not recognize as their own. Hence, this chapter also comments on the methodological limitations of statistical analyses in the study of actually existing, concrete work practices, demonstrating how such methodological approach black-boxes judicial decision-making and disaggregates cases into “factors”.

In March 2012, a study into sentencing disparities shocks the Dutch Judiciary. Three researchers of the University of Leiden, using in-court observations and statistical analyses, have demonstrated that defendants’ “foreign” or Dutch “appearance” influence judges’ sentencing decisions: these defendants are usually punished more harshly than the native Dutch. Practicing judges react to the study in frustration, raising the question whether researchers have “any idea” as to how judges “deal with cases”. Here, I take their objections to this controversial study seriously: not only as an implicit critique of social scientific knowledge production about legal practices, but also as being reflective of wholly different ways of seeing and constructing cases. I raise three questions: First, how do judges deal with cases? How do they evaluate evidence, construct or deconstruct different story-lines, how do they come to “see” the case? Secondly, what do social scientific observers see (and not see) when they try to describe, understand and explain these practices, and how do their methodological choices and theoretical assumptions shape their accounts? Third, what do I do when I try to research and describe these practices, that is: how do my own positionings, assumptions, and methodological choices affect the knowledge I produce?

This chapter surveys the principal features of the legal system of the later sixteenth century, beginning with the courts and their functions. Trials took place at the assizes in the country, separated from the legal argument in Westminster Hall. The court at Westminster did not hear the evidence but had to take the facts as encapsulated in Latin; the effect of this separation is considered. In absence of appeals as we know them, judges were unwilling to decide difficult cases, though the desire for unanimity was giving way to an acceptance of majority decisions. The cost of litigation was much lower than today, and most litigants in the highest courts were of a social status below the gentry. The chapter ends with an account of the legal profession in this period, which saw the rise of the solicitor. The inns of court played a central role as a residential legal university, attended by a substantial proportion of the English gentry.

This chapter continues with the differences between then and now and explores the difficulties of an evaluative comparison. The question is approached in terms of the rule of law, as now understood. In terms of accessibility, efficiency and fairness, in the sphere of civil justice the scales seem to be evenly balanced between the two periods. The criminal law, on the other hand, is now more protective of the accused and less severe; the removal of the death penalty, however, has led to the removal of some of the older safeguards. A meaningful comparison of the substantive content of the law in both periods is hindered by the intervening social changes and by changing attitudes to property and personal autonomy. The transformation of family law is a case in point. Nevertheless, the ultimate conclusion is that the law under two Elizabeths is in essence the same organism, facing similar challenges, and tackling them in recognisably similar ways. Much of what we regard as achievements of modern enlightenment should in fact be credited to the lawyers of the sixteenth century and the common-law heritage.

We pivot in this part to discussing the other key player in the judicial tug of war – political elites. Chapter 4 begins by considering how the interests of political actors and those of the bar clash over the captured judiciary. Specifically, over time, political actors and lawyers have drifted apart ideologically, resulting in tension. This mismatch, we argue, sets the stage for contemporary fights over the politicization of the judiciary, over activist judges, and over the meritocracy of the judiciary – the judicial tug of war. We also note in this chapter that an increased interjection of “politics” into the selection of judges, although perhaps unappealing to many Americans, need not necessarily be undesirable; after all, having a judiciary that represents a greater variety of political and ideological interests (including conservative ones), and not just the bar’s, might be the most desirable from a normative perspective.