Excerpt

The European Court of Justice (ECJ) in many ways is a unique court, and it has undergone a remarkable transition in its roughly fifty-five years of existence. While it originally consisted of just seven judges, six of whom hailed from a country with a French law tradition, it now consists of twenty-eight judges from all major European legal families. Originally designed as an international court with jurisdiction to adjudicate disputes about the interpretation of an international treaty with a rather narrow scope, it has developed into what might be the single most powerful court in Europe. Despite the ECJ’s importance, the drivers of its decisions are not well understood. Commentators take different views on whether its decisions are mainly motivated by legalistic considerations (Sankari 2013), whether the ECJ is best understood as a political actor with strong preferences toward European integration (Rasmussen 1986), whether the political background of individual actors plays a role (Frankenreiter 2017, 2018), and to what degree the French legal culture, which dominated the ECJ at least during its early years of existence, still influences the output of EU courts today (Komárek 2009; Zhang, Liu, and Garoupa 2018). The study presented in this chapter focuses on one specific aspect of the ECJ’s output, namely, the writing style of its opinions, and uses a computational approach to explore whether the French influence has become less dominant over the years.

The style of opinion writing at the ECJ is a contentious issue. Those critical of the court accuse it of using an inscrutable style which does not reveal the true drivers of legal decisions (Brown and Kennedy 2000, 55), voicing concerns that this style might undermine the authority of the court (Arnull 2006, 13). Joseph Weiler once demanded that the ECJ “abandon the cryptic, Cartesian style which still characterises many of its decisions and move to the more discursive, analytic, and conversational style associated with the common law world” (Weiler 2001, 225). Its defenders admit that the style of the ECJ can seem apodictic but maintain that this style is a necessity given the collegial nature of decision-making at the court (Bobek 2015b, 171).

It appears that this dispute is related to different assumptions about the role of the French legal tradition in the evolution of the writing style of the ECJ. Different jurisdictions have produced different ways of opinion writing (Goutal 1976; Wetter 1960). For example, the French legal tradition is commonly associated with the short and seemingly apodictic form of reasoning which the ECJ is often criticized for. Common law judges, by contrast, are customarily described as being more transparent about the “real” motivations behind decisions. Those critical of the writing style of the ECJ essentially accuse it of not having adopted sufficient elements of the writing style of common law judges, or in other words, of writing in a style that is too heavily influenced by the French legal tradition. This reasoning would seem particularly plausible if judges from countries with a French legal tradition have had an outsize influence on the development of the ECJ’s writing style. By contrast, it seems much more plausible to argue that the writing style today is a reasonable response to the institutional constraints the ECJ faces if its writing style is the result of a process in which the court was able to develop its own style, free from the dominant influence of any specific tradition.

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