The Role and Legitimacy of Judicial Assistants in European Legal Systems
Date: 27 - 28 August 2019
Convenors: Anne Sanders (Bielefeld, GER), Nina Holvast (Rotterdam, NED)
When deciding cases, judges exercise considerable power. In a society governed by the rule of law, a judicial decision is considered binding and legitimate because each judge was selected and appointed according to certain rules and procedures. The importance of the selection of legitimate judges presupposes that making decisions is the responsibility of those judges alone. However, at many courts, in many legal systems, judges are supported in the adjudicative process by assistants. Is this division of labour in courts a problem for the legitimacy of the decisions?
Two questions govern the project:
First, the participants want to understand how judges and judicial assistants actually work together in different legal systems. This is an issue of interest of legal scholars, but (amongst others) also sociologists, political scientists and academics studying organisations. Currently, very limited empirical data is available on this issue. For this purpose, all of the participants have worked on judicial assistants in more than their home legal systems. They have collected empirical data through interviews, questionnaires and statistics in seven legal systems. At the workshop, this new data on the work of judicial assistants will be discussed for the first time. In addition, the results of a new study of the Council of Europe will be presented.
Second, the project raises the normative and theoretical question of the boundaries to the division of labour in courts. This is a particularly emerging question for legal-theorists, philosophers as well as scholars studying (legal) ethics. If the legal framework proscribes that a legitimate judicial decisions must be made by a judge, how much – and what type of – work may he or she delegate to an assistant? Is editing and signing an assistant's draft enough to consider the decision legitimately as the decision of the judge?