Some quick thoughts about the function of an Advocate General. Why have an opinion from an expert in the Court of Justice if it is not binding? (Thread)
And while we are at it: The Court also does not have dissenting opinions. Isn’t that messed up?
Let’s begin by taking a step back: a dissenting opinion, curiously, is also a non-binding opinion by an expert from a court (a judge). Why do we feel publishing an AG opinion is strange (as a non-binding opinion), but a (non-binding) dissent is a must?
The first thing to note is that the constructions of legal institutions and their habits are to some extent cultural. Yes. There are universal tenets of justice and due process. But within this space there are numerous ways to construct your process.
Growing up in a country and a culture you often feel like everyone else’s alternative must be worse. In the UK, there’s a strong conviction that English law is clearly superior to all else.
It might or might not surprise you that Americans think the same, so do French, so do Germans. And they all think that their system is better than the English one, much like we think the English one is better than theirs.
The best way to approach this problem of inherent bias is to explain the function of something. So why are there no dissenting opinions in the ECJ and what is the function of an AG opinion?
Many courts do not have dissents to enhance the authority of a judgment and the law: this now is an authoritative interpretation of the law.
For common law eyes these decisions are at times cryptic. No wonder - all of the judges of the formation have to agree with this, so at times this warps the text to something strange. Is it, accordingly inferior to common law?
Well no - it is just different. In a UK or US court you might have all judges arguing separatly, coming to the same result but for different reasons. If you try to decifer the ratio - it is just as cryptic.
Dissents in the UK and US systems allow you to see alternative paths for the evolution of the law, routes not taken (but possible avenues for the future, though maybe not).
AG Opinions are flexible tools and allow for that too. An AG can simply give a suggestion on how to rule (at times the AG will actually feel that it will become a dissent). An AG can make important points - suggest changes to the law, alternatives etc.
Some AG opinions have shaped the law, suggested and inspired legislative action.
As AG opinions are the work of one person they have an inherent logical consistency that judgments of a formation of 5 (let alone 28) judges writing together can hardly have.
And some of you will now think - “well ok, but doesn’t the AG opinion diminish the authority of a court if it is different?”. But take a step back: do you not favour dissenting opinions? Don’t thse diminish the authority of a court even more?
