While there I stopped by the U.S. Consulate where I had interned as an undergraduate a decade earlier. The Consulate serves as the Strasbourg Office of the U.S. Permanent Observer to the Council of Europe and as such follows its proceedings, including those of the ECHR. The Consul General, an American-trained attorney, introduced me to her interns and asked me to tell them what things an American legal audience might be interested in learning about the ECHR.
I suggested that, for starters, I would personally be interested in learning about the jurists' backgrounds, i.e. his/her legal training, prior judicial service, and political and jurisprudential commitments.
A French intern, a student at the well regarded Faculté de Droit de Strasbourg, was scandalized by the suggestion.
"Why would the identity and background of the adjudicator matter?" I attempted to elaborate the problem of vagueness in construction and the more than occasional interstitial lawmaking in which judges may necessarily engage. I explained too that my suggestion was not making any normative claim about the way judges ought to judge, just a descriptive one. No good. She dismissively snapped: C'est un truc américain. Roughly translated: "that's an American thing."
The irony of the exchange still amuses me. I occasionally use the example when talking with students about interpretation and legal culture. In the United States, I am considered a formalist, but in the land that exported Derrida and critical theory my suggestion branded me a rank hyperrealist!
It is my sense that the dominant official legal discourse in France remains a variety of formalism, where judging is talked about more like a deductive science proceeding apodictically from the Code’s premises to a legal ruling. My colleague Chaim Saiman recently directed me to Mitchel Lasser’s interesting 1998 Yale Law Journal article arguing there is an unofficial discourse about the role of judges in mainstream French academic doctrine and in judicial magistrat argumentation that does admit gaps in legislative coverage and a discretionary judicial role. Either the French intern didn’t get the memo or the message is not made clear in the classroom.
My interest in judicial selection was what had brought me to Strasbourg. It is my prediction that the judicial selection processes for the COE's ECHR and the EU's European Court of Justice will grow increasingly contested as the prevailing official portrayal of judging changes and the public recognizes judging for what it is. The calls of EU parliament members for greater democratic participation in the ECJ appointment process suggest that day may not be far away.