Who strategises?

Who strategises? 14 October 2011

He does not really exist but he is a very useful figure to conjure up for the sake of what we want to achieve.

He is the fictitious figure that strategises to make sure that his (or maybe it is a her?) national legal system remains robust and effective in face of the challenges the global legal environment throws up.

When he first popped up in our brainstorm sessions I pictured him as a Wizard of Oz-like figure. Hidden away an imposing place that was not easy to get to. And once one outsmarted all his defenses and penetrated his hide-away, one learned that we was nothing more but an old man with a lot of bluff.

Who strategises for the national legal system? We asked Joris Demmink, Secretary-General of the Dutch Ministry of the Security and Justice.

“Our Ministry certainly does.”, he said, “We have a directorate for strategy, especially for this purpose.” I knew that to be true: in 2007, that department published the only Ministry of Justice future study that we have been able to find: Justitie over Morgen, or, freely translated, ‘Justice about Tomorrow’. It presents four scenarios up to 2015 for the Ministry, and we found them very useful, even though they were aimed at a ministry and not at a legal system as we are endeavouring to do. Since publishing them, the department has also published 2010 study that tries to assess what is actually unfolding.

Digging deeper we learned that on the political level there is hardly any time to deal with broad, long-term strategic ‘legal system issues’. Occasionally ministers might make time for that, but they are generally caught up in the day-to-day politics of running the country and the Ministry. So, the secretary-general of the ministry, strategises, provided he of she stays within the parameters that the political bosses set.

Does parliament strategise on legal systems? Formally, parliament is the lawmaker. In spite of that, it does not, or rarely seems to be, the case. Here too, the political weather of the day, week, month, of maybe year, determines much of what happens. No looking 10 years ahead. There is of course, one all-determining moment when parliament strategises, and that is when it adopts, amends, or refuses to amend a constitution. But, again, that’s a rare bird: the last time that happened, one often hears in The Netherlands, was 1848.

Who strategises in the EU, that legal order within which the Dutch legal order functions?

“The Lisbon treaty which entered into force on 1 December 2009 is a hybrid vehicle that has given clarity in some aspects” explains Joris Demmink, “but it led to unexpected consequences in other areas.”. His analysis: from an institutional point of view, the ‘winners’ of post-Lisbon Europe are the European Council (government leaders) and the European Parliament with its expanded powers. Those that have ‘lost’ are the Council of Ministers and the Commission.

This means that more power is now concentrated within the major member states. For a relatively small country like The Netherlands, it means that it can best bet on a close relationship with the Commission, hoping to influence draft legislation in an early stage. Achieving marked changes to proposals once they come to the Ministers is virtually impossible for a small country in post-Lisbon Europe.

So one EU ‘strategist’ is the Commission, with its right to initiate legislation, its position as the only bureaucracy that can approach a pan-EU view, and its technical expertise.

“The internal market,” according to Joris Demmink,”is not likely to be the subject of fundamental strategizing at the EU level. That building is almost finished. A new harmonisation drive can be expected in the fields of criminal procedure and private law. This might stretch citizen’s acceptance of EU involvement in national affairs.”

Thus, we had covered the two most obvious strategists for a EU member state: the national government and the EU governmental level. There is however one other strategist, even more amorphous than the others mentioned before, that cannot be forgotten: non-state actors.

Demmink was clear: “Private actors of all sorts have become more important. Also in political and diplomatic terms, private actors make their presence felt, sometimes complicating the work of national governments in international and domestic affairs.”

With private parties’ big role in globalisation, their quest to find the most reliable and expedient means to obtain justice is becoming ever more relevant to courts, governments and citizens. Private actors rely on public authorities for many of these services and seek out a host state most suited for their purposes. This relationship, where private actors depend on public institutions is one of the most important and underexplored facts of present-day internationalisation of law. Both hold a degree of dissimilar power (money versus institutions of law).

“Insurance companies are in many ways leading in this quest to find justice. Just about every interest imaginable can be insured these days, which is why effective conflict resolution in complex environments and with multi-jurisdictional parties is part of the core business of insurance companies. You might wish to get in touch with insurers as you develop your scenarios.“

So, perhaps the strategist of the legal system does resemble the Wizard of Oz a little: a critical figure but, at the same time, a lot less coherent and imposing than one might wish to imagine.