Living with Five Supreme Courts

Abstract

Alan Paterson's research is sceptical about the so-called dialogue between national courts and European courts. In relation to the Luxembourg Court, he writes that, although a few British judges go to the annual meeting with the Court, "there does not seem to be much by way of intellectual exchange." The structured dialogue in terms of preliminary references and the responses given by the Court which are then acted upon by the national court or used in interpretation seem akin to "sequential monologues", rather than dialogues.

Paterson is more convinced that the Strasbourg Court engages in dialogue. It does seem to change its mind as a result of dissent from the national courts, and national courts do seem to debate what it says. But all the same, the major theme of his work is the overly deferential approach of the national courts to the Strasbourg Court. Paterson's discussion raises an important issue about the character of interactions between supreme courts. If institutions are not hierarchically integrated, how do they interact and how do they remain coordinated? This is significant, not least from the point of view of the litigant and his or her lawyer.

This paper takes France as a suitable example of the continental European problem of integrating supreme courts, both at national level and at supranational level. France, like many countries, exists with a kind of confederation of supreme courts at national level and then can be further related to Courts in Luxembourg and Strasbourg. France operates with a weak doctrine
of precedent - it is better to get the right answer than to get an answer which is predictable from the previous decisions of a higher court. So, coordination is a matter of persuasion, not
command. My argument essentially is that, as Paterson suggests, we need to look at the mechanisms which promote "intellectual exchange", rather than simple "sequential monologues". For the most part in France (and I would argue elsewhere also), these are informal, as Mitchell Lasser suggests.