The role of judges in academic and political discourse

The paper aims at exploring the implications of ‘academic activism’ by judges at the Court of Justice, due the specificities of the European institutional setting and the EU legal framework. The contribution will first introduce the possible sources of interaction between academia and the judiciary (section 2) since judges’ scholarly writing is but one of the modes in which the judiciary may engage in dialogue with academia. The goal here is to underline how judicial and academic work differ in nature, aims, and features, but they are likely to interact, and when they do, legal systems have to accommodate the possible ensuing tensions. Following that preliminary part, section 3 will delve into one particular form of interaction between scholarly debate and the judiciary, which is the academic writing by judges, more specifically by members of the Court of Justice. Rather than capturing the details of the extent to which judges at the ECJ engage in legal scholarly writing, our research aimed at gaining an overall picture of the magnitude of the phenomenon, considering also the composition and the academic career of the members of the Court. This broad notion served as a basis to explore the possible points of concerns arising from ‘academic activism’, in particular undermining collegiality or altering the perception of judicial independence. On our part, we believe that there is no great danger in judges participating to academic debates and that the judiciary’s freedom of expression is a paramount interest, provided of course such participation does not interfere with the effectiveness of proceedings. This is not to say that members of the judiciary should not exercise caution in expressing their views, but this is a matter of desirability better left to the wisdom of the individual, rather than a matter of institutional concern. The concluding remarks will underline how balancing the freedom of expression of members of the judiciary with the independence of the Court deserves particular care in the EU due to the nature of the Court as a judicial body that is both more visible and more open to challenge than national apical courts.