Europa Felix

A Realist’s take on EU law | Tamara Ćapeta

March 30, 2023 Tamara Ćapeta, Felix Ronkes Agerbeek
A Realist’s take on EU law | Tamara Ćapeta
Europa Felix
More Info
Europa Felix
A Realist’s take on EU law | Tamara Ćapeta
Mar 30, 2023
Tamara Ćapeta, Felix Ronkes Agerbeek

My guest in this episode is Tamara Ćapeta, Advocate General at the European Court of Justice and law professor at the University of Zagreb. Our main topic of conversation is legal realism, a topic on which she has written several academic articles.

It’s tempting to misconstrue legal realism as a cynical, 'anything goes'-approach to the law. But in Ćapeta‘s writings and in this interview, legal realism emerges as a form of judicial modesty. She argues that the idea that legal questions have a single, correct answer is basically a myth, and hat courts would gain credibility if judges acknowledged more openly that their legal decisions are choices, instead of objective truths.

I ask her what it’s like to be Advocate General and if it has changed her perspective on judicial decision-making. We talk about legal reasoning and objectivity. We discuss if artificial intelligence can replace judges. We talk about transparency in court rulings, about whether the Court of Justice should allow dissenting opinions, and about imagining different realities — in law and in science fiction.


Book recommendations:

  • Liu Cixin, The Three-Body Problem trilogy
  • Yuval Noah Harari, Sapiens: A Brief History of Humankind
  • David Mitchell, Cloud Atlas

Special thanks to Alessandro Spina, Jacco Bomhoff and Mislav Mataija.

Comments? Guest suggestions? Email me at

Show Notes Transcript

My guest in this episode is Tamara Ćapeta, Advocate General at the European Court of Justice and law professor at the University of Zagreb. Our main topic of conversation is legal realism, a topic on which she has written several academic articles.

It’s tempting to misconstrue legal realism as a cynical, 'anything goes'-approach to the law. But in Ćapeta‘s writings and in this interview, legal realism emerges as a form of judicial modesty. She argues that the idea that legal questions have a single, correct answer is basically a myth, and hat courts would gain credibility if judges acknowledged more openly that their legal decisions are choices, instead of objective truths.

I ask her what it’s like to be Advocate General and if it has changed her perspective on judicial decision-making. We talk about legal reasoning and objectivity. We discuss if artificial intelligence can replace judges. We talk about transparency in court rulings, about whether the Court of Justice should allow dissenting opinions, and about imagining different realities — in law and in science fiction.


Book recommendations:

  • Liu Cixin, The Three-Body Problem trilogy
  • Yuval Noah Harari, Sapiens: A Brief History of Humankind
  • David Mitchell, Cloud Atlas

Special thanks to Alessandro Spina, Jacco Bomhoff and Mislav Mataija.

Comments? Guest suggestions? Email me at

FELIX RONKES AGERBEEK: Welcome back to Europa Felix. I’m Felix Ronkes Agerbeek. My guest in this episode is law professor and Advocate General at the Court of Justice, Tamara Ćapeta. Our main topic of conversation is legal realism — a topic on which she has written several academic articles. 
It’s tempting to misconstrue legal realism as a cynical, anything goes-approach to the law. But in Ćapeta’s writings and in this interview, legal realism emerges as a form of judicial modesty.  She argues that the idea that legal questions have a single, correct answer is basically a myth, and hat courts would gain credibility if judges acknowledged more openly that their legal decisions are choices, instead of objective truths. 
I ask her what it’s like to be Advocate General and if it has changed her perspective on judicial decision-making. We talk about legal reasoning and objectivity. We discuss if artificial intelligence can replace judges. We talk about transparency, about whether the Court of Justice should allow dissenting opinions, and about imagining different realities in law and in science fiction. 
Here is Tamara Ćapeta. 

Tamara, welcome to the show.

TAMARA ĆAPETA: Thank you for inviting me.

FELIX RONKES AGERBEEK: You are the first Croatian advocate general at the court of justice and you also have a long academic career. How big is the step from being an academic to being an advocate general? 

TAMARA ĆAPETA: I have to start with saying that before becoming an advocate general I thought that this is just going to be more or less the same. So I come to the Court, okay, I will have to be writing from within one particular case, but my job will be I have to read everything written about it and then think about it and make several drafts about it and so on. The reality is that there is no time for all that. So the big difference between being [an] academic and being at the Court of Justice is time, I have to admit. This is the biggest difference I find. When you write an article you have months or years sometimes to finalise whatever you wanted to say, but here at the Court you have relatively short deadlines. I know that for our parties these deadlines look long. And when I announce at the hearing that I will read my opinion in four months time then they are like: ‘Oh, but what are they doing here at the Court.’ But then they forget about this one particular aspect of the Court’s work and these are the languages, so everything has to be translated and this takes time. But this also shortens our deadlines. So this is one big difference for sure. 
The second thing, the second difference is that, for the first time in my life, here in the Court I have the helpers who help me writing. I never had that. I did write several of my articles together with someone. But these were usually people with whom I worked already for long — Siniša Rodin or Nika Bačić Selanec — so we already discussed these issues and we actually wrote the article together. But here I have wonderful référendaires and they write the first draft for me and then I’m drafting out of this. And I have to admit that I am still adjusting to this. I am still adjusting to having somebody writing the first, you know, the first go of whatever I want so say. Of course, we discuss what I want to say, they try to put it in words, and then I take it and then I redraft it. But redrafting this is different from drafting from the beginning. I would even say that probably my academic background is a problem for this in a way. That said, this is wonderful. I have to admit that this is really, probably, something that no other court in the world has — even the best equipped courts in the world don’t have such a help as we have here at this court.

FELIX RONKES AGERBEEK: Would you mind saying something about your process? How does that actually work? When you receive a case, you read the submissions, do you then have a session with your référendaires or your helpers to see…

TAMARA ĆAPETA: That you would remember, as you were also at the Court, no? That when the case arrives to the Court, first — and this is also one thing that I have learned actually at the Court even though my academic life was devoted to the Court and how the Court functions, you learn how there are still things that actually work differently than what you imagined. We always, like when you teach at the university you say, well it is the Advocate General who goes first. That is actually not completely true. Because if you will remember, then the case comes to the Court, and before we decide as the full court in which kind of formation to decide the case and whether an [Opinion of an] Advocate General is necessary or not, it is first the judge, the Reporting Judge, that writes what we call a ‘rapport préalable’ here — so a preliminary report of the case. So this was a fact that I was not aware of before. I mean I kind of knew about it, because you learn about it, but I didn’t think about how important that is. And it is important because it also kind of frames the work of the Advocate General later on. Because I have several publics to who I write, but the first addressees of my Opinions are of course judges, because this is what justifies my existence, no? I’m here to help the Court in the first place. So knowing what was the first impression of a judge about the case is something that I have to address. And maybe people don’t know that but every case gets an Advocate General, which does not necessarily end with [the] Advocate General really writing [an] Opinion in all those cases. So when I get the first cases I usually read something to inform me quickly about the case. Then the case goes into its own procedure and then it is the reporting judge’s round to send a preliminary report. And then when I get the preliminary report then I get back to the case, me and of course my référendaire. All this time before my référendaires were working on the cases, ok, so they start reading ahead of me everything that is available. So they read they prepare for the case because at the moment when we get the preliminary report we have to decide whether we agree formally with this. Not in substance necessarily, but whether we agree with the formation of the judgment, of the court that is going to decide, and whether we agree with the proposal that we either write or not write an opinion.

FELIX RONKES AGERBEEK: Yeah, because it’s at that stage that there needs to be a proposal…


FELIX RONKES AGERBEEK: Does this case require an Opinion of an Advocate General, or is this more a routine case, should it go to a Grand Chamber or to a smaller chamber? It’s that moment.

TAMARA ĆAPETA: Exactly. This is then at that moment the joint decision first of the reporting judge and the Advocate General, so we spend time talking together, or référendaire to référendaire or judge to Advocate General. And then this decision is not either [the reporting] judge’s or mine, it is the common decision of the entire Court. So the Court meets every Tuesday at the General Meeting, and this is the meeting at which we discuss if necessary, and accept together the proposed formations for different cases. And then my job really starts. And then of course the story develops differently wether we are going to have a hearing in the case or not have a hearing in the case. Personally I love having hearings, because even if all the questions are really legal questions and I don’t need any additional facts to be explained by the parties, still discussing with the parties is something that gives you additional ideas, gives you the possibility to understand some maybe other point of view of which you didn’t think about before. And I have to admit that sometimes hearings influence and change how I started, how I started to think about the case. And I think that it also has another important aspect and this is to give the opportunity to the parties and to the Member States of course or institutions who can always participate to actually try to influence what EU law should mean. Because in the end what the Court is going to say is going to become the, let’s say, truth, legal truth. But it is important that this is an interactive process which involves the different stakeholders there and therefore I think it is quite important to hear that. Because we are not writing opinions, or the judges judgments, for ourselves. So I always find it useful. 

FELIX RONKES AGERBEEK: I want to come back to… A little bit back before the hearing… So between that moment when it’s decided this case requires an Opinion of an Advocate General and there will be a hearing, and then the actual hearing. What happens in that period? Do you draft the Opinion already, or do you wait?

TAMARA ĆAPETA: So I have four référendaires and I always I assign one référendaire for a case, so I then discuss with that référendaire how to start, how should we start. But then for me for the first phase, for the hearing, of course we have to find what we find problematic. What are the parts of which we have to think more and of which we maybe want to ask the parties more. So the most important part at that stage is not to miss the opportunity of having the hearing, so to prepare for the hearing in the right way so to have the most of the hearing. And for this sometimes — it depends on the cases — sometimes I already, we already prepare the first, or we call it zero draft, before [the] hearing. And sometimes not, sometimes we just have you know like bullet points for us and an idea of the structure of the Opinion and the questions that we want to ask. And then later on we actually start writing it.

FELIX RONKES AGERBEEK: Do you have a lot of discussions within your team?

TAMARA ĆAPETA: Yes, so, in the process I was already talking with the référendaire, because unlike judges, who when they have to come to a judgment actually meet together, and they discuss, I only have my référendaires to discuss the case with, so this is really really useful. So this is normally bilaterally. But sometimes then we organise, if the case is difficult, multilateral meetings. So we all sit together and then we discuss issues. And they’re always joking with me that you can see that I’m from academia because this can last for hours. So I am really happy to have this clever team and wonderful team to help me boost my thinking.  

FELIX RONKES AGERBEEK: So you’ve mentioned time. You’ve mentioned your team of référendaires. What about the content of opinions? As an academic, did you have a particular idea of what an Advocate General Opinion should look like?

TAMARA ĆAPETA: I of course had a lot of ideas when I was coming here how opinions should look like. And as I am a persuaded legal realist and I don’t believe that there is one meaning of any legal rule almost I was persuaded that what I have to do is to show judges all these different possible interpretations of [the] legal rule. But it is true that in the end the opinions don’t always end up that way. Because that is just to much, you kind of point that there might be this and this way but then you kind of go your way in the end. Even though I think it would be more sincere sometimes to say there is this this this and this way and then you can say ok I choose this one and these are the reasons why I propose to the Court to go this way, but… I would love to have structure of my Opinion in that way, but it is not always so.

FELIX RONKES AGERBEEK: This is actually a perfect bridge to what I really wanted to ask you about, because this notion ‘formalism versus realism’, this is a theme running through many of your writings, this fascination with a very basic question of ‘what is it that judges actually do?’ Could you say something about that. When you say ‘I am a legal realist’, what does that mean for you?

TAMARA ĆAPETA: I would define what ‘legal realist’ means is the person who does not believe that there is only one correct answer. Whereas legal formalists believe that there is one correct answer. That doesn’t mean that this correct answer is obvious from the text — legal formalism moved beyond that today of course. But legal formalists believe that there is an objective method which leads judges to finding a correct meaning. And I have a problem with that. I don’t believe that there is such an objective method. I think that all the techniques that the judges are using to justify their judgments also partly influence the way how they come to the conclusion in the end, to the decision. However, they are not objective in the sense that they will lead every person to the same result, in that way. So there must be something else that also influences the outcome, that also influences the final decision you find about anything. I mean, it can be about the entire case, or just about the meaning of one rule or just the meaning of the word in one rule, can actually end up differently if you have two different judges.

FELIX RONKES AGERBEEK: And what is that something else?

TAMARA ĆAPETA: That’s what I was asking myself in the one piece that I wrote about the ‘ideology’, but I kind of I defined ideology for myself like only the personal belief about what is the good organisation of society. This is something that I believe influences decision-making.  And I actually think that this is something that should influence decision-making. And this is something that is strange. Because there is this general picture accepted in our societies today that judges cannot have such personal value judgments about the right outcomes of the cases, because the judges have to be neutral, objective, and so on. And I absolutely do agree that judges should not force their own opinion of how the world should look like and they are not at liberty to do that. However, if they are really faced with the possibility of different outcomes and all of them are possible outcomes, then a person should choose the outcome in which that person believes is the good one. Because otherwise you are not truthful to yourself. Of course this is provided that there are more opportunities. However I am also of the opinion that most often you can find different options how to resolve the same problem. And the important thing is that we recognise this. Because the narrative about the judges  is that these are knowledgeable people who learned about the law and now they can objectively, taking this law that they have learned, apply this, and have the outcome of the cases in a correct way.

FELIX RONKES AGERBEEK: Almost as if it wouldn’t matter, who at that particular moment, would be the person who is the judge.

TAMARA ĆAPETA: Exactly. Exactly. I think that a very important thing for a judge or Advocate General is to realise that, yes, you do have a certain position about the world, which maybe sometimes you have to control, in the way that if you are to interpret a statutory instrument, so in the European Union a directive or a regulation or so on, you have to think that this maybe does not necessarily reflect what you would like it to reflect. So this has to be taken into consideration but you have to be aware of this.

FELIX RONKES AGERBEEK: What you are now describing, the fact that the personality, the worldview of a judge, influence her decision-making and her reasoning and her thinking about a case — in a way that’s something that I think if you would ask any non-lawyer, is almost intuitive. But as lawyers we tend to unlearn that or be taught that it shouldn’t be so. Which then indeed leads to these two things that you mention. On the one hand this pretence that there is only one perfect, one right legal solution and on the other hand this idea that that solution is not influenced by [the] worldview or ideology of the judge.

TAMARA ĆAPETA: Precisely, this is — when I talk to people who are not lawyers and we come into this type of discussions then very often I get the answer, well yeah, of course. I mean they are different people, lawyers can think differently. That’s normal for them. But if you go into how we study about law, it was especially present in the country where I come from and in the systems that developed in Eastern Europe, this formalism which tries to tell you that law is objective and it is just enough that you learn the law. And then you are skilled and you can resolve anything. And if this is true then the legal outcomes have to be the same — it doesn’t matter who actually decides. But of course if you think a little bit about this, this is not so, but we are still insisting on that narrative. And there is even, you know, the expectations of the lay community, so to say, that this is so.

FELIX RONKES AGERBEEK: But that’s not so strange, right, because the obvious fear that people have is that, well, does it then become completely arbitrary? Are there any constraints on judicial decision making at all, or is that just something that we pretend?

TAMARA ĆAPETA: Exactly, exactly, I mean, that’s the fear, that we will not enter into the government of judges, because of course judges have a very powerful position, because we have given to the judges the possibility to have the last word about what law means. So this is of course the fear why we are trying to develop this narrative. But developing the narrative doesn’t prevent it, that’s the problem. So we have to admit that this is also present. And then we can only ask ourselves what to do with it. So the first step for preventing judges imposing their own viewpoints, is that they realise that they have them. We are pretending that we are doing this through the rules of legal interpretation. So we are going to look into what [the] text tells us, we are going to look into what the purpose of [the] rule is, we are going to look into what is the context. And then the narrative is: okay, this is what leads us to the answer and this is objective. But it is not objective.

FELIX RONKES AGERBEEK: Still the legal materials, the text. the accepted techniques of interpretation, don’t they act as  constraints on judges?

TAMARA ĆAPETA: They are constraints and they’re helpful as well, but they don’t make the decision-making objective. That’s what I wanted to say. You can do a lot with the wording of legal text. So it is by far not true that you can find the answer in the text. But you can actually play with the text and come to different answers, which of course does not mean that the text is not a type of constraint. You cannot neglect that there is a text and you do start from the text. But most often the case is in front of the Court because in the context of the same text you still have a dispute between the two parties who claim that both of them are right. And the same goes for everything else. It goes for purpose, it goes for context. It always depends on what are you going to think that the purpose of this rule is, because most often this is not clear. I mean especially in EU legislation it is not clear because it is a result of compromises. Any piece of legislation is a result of a lot of inputs which then enter into a kind of black box. It’s difficult to find the legal history of everything, and then there is some output in the end. And so which inputs influence really those outputs, it can be read differently by different people. So of course we do look — and I can’t say that this is not important… So all this what you learn at the university, what the European Court of Justice does, how the Court decides is by taking into consideration words, purpose and context of the rules. And it is true that in the Court it is very often done, but it is not necessarily that that leads you to the conclusion. It is that that is corrective, that is something that you cannot and you should not avoid. And I have to admit that sometimes there were cases in which I then went into legislative history, into wider context of, let’s say, international relations into which you can put all this, which changed my opinion in the end. And then I said, okay, no really, the proper interpretation of this rule is actually not what I started with.

FELIX RONKES AGERBEEK: But that’s interesting. If I understand you correctly, personal ideology and the accepted methods of interpretation, they interact with each other…

TAMARA ĆAPETA: The difference is only, you know, whether you claim that this different methods are something leads you to the conclusion or they’re actually something that serve as justification to whatever you came to. In the end I would say it is a combination. In real life it is in the end a combination. Because you start with something, then something corrects how you started, that brings you to another way, and so on. It’s a process that has a lot a lot of inputs from different sides, but part of this is your personal convictions.

FELIX RONKES AGERBEEK: You give a very nice example in one of your articles — the one on ideology I believe — of the possibility of different outcomes, when you mention the Reed case. Would you mind talking us through that example?

TAMARA ĆAPETA: Yeah, this was the case in which the Court was asked to interpret the notion of ‘spouse’ in a Regulation. And the question was whether spouse means only married partner, or also unmarried partner. And the outcome would be very different for the person that was the reason for [the] dispute. That person would have more rights if spouse would mean also unmarried partner. And then the Court as one of the methods that the Court is proud of and for which it has resources fortunately — the research division of the Court — went into a comparative research of the national systems, and how Member States actually deal with the term ‘spouse’ and found out that in [a] majority of legal systems at that time spouse meant the married, how do you say, married partner. But still they found that that were some Member States in which this was not so. So there were some Member States in which the development went further and now the spouse became also a person who were not married. However, the Court said that this comparative method helped it to come to the conclusion that spouse in this Regulation means only a married person.

FELIX RONKES AGERBEEK: Yeah, I have the quote from the judgment here. It’s a paragraph that reads: ‘In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the Regulation, it must be held that the term “spouse” in Article 10 of the Regulation refers to a marital relationship only.’

TAMARA ĆAPETA: Exactly. But then you know, given the social developments in some of the Member States which started, they could go with a different wording, a different justification. They could say that, in view of the social developments that started in some countries, and in view that there was nothing to the contrary in the Regulation, the spouse means, actually, also a non-married couple. So both justifications were possible, okay. It was just a matter of choice.

FELIX RONKES AGERBEEK: In your article you cite the paragraph that I just quoted from the court’s judgment and you juxtapose it with a paragraph that you made up to show what a more, let’s say, liberal judgment would have looked like. And it’s quite funny, because, indeed, when you read the two paragraphs side-by-side they both seem like the kind of thing the court might actually say. 

TAMARA ĆAPETA: And this is very often the case. You can just choose which interpretative technique so to say you are going to use and that will then, well, not really lead you to the different outcome, that would actually justify your different outcome. But sometimes it is also a way in which you try to find the answer, simply. I of course don’t know what  motivated really the Court. But you can speculate, okay, that partly it could be the conservatism, or it might be, you know, just the wish of the Court to defer to the Member States and their competences in that field, because it’s still a sensitive area. But what is a problem in my view is that you can’t read it in the judgment. This is the part that is missing. And now I was always asking myself why is this missing always from the judgments. And there are probably lots of explanations for that. One of them is of course what we already discussed: the judges are expected to be objective and therefore they’re going to try to present their way of decision making as something objective. And then there is another one and that is that especially in the court in which I am now, which decides collegiately, it is sometimes very difficult to explain really things because there are different opinions. But of course I as Advocate General cannot know that because I am not participating in deliberations at the Court, so I can still speculate in an academic way about that.

FELIX RONKES AGERBEEK: You also have an article called ‘Of Judges and Robots’ and there you make the point in a different way. You raise the question: could artificial intelligence replace judges? And your tentative conclusion seems to be, well, no, that would be very difficult. And you give a concrete example of why that would be difficult. And that’s the example of Van Duyn and Faccini Dori, the case-law on the direct effect of directives. Would you mind walking us through that example?

TAMARA ĆAPETA:  In Van Duyn when the Court first said that directives do have direct effect, the U.K. government that then intervened in the case had the textual arguments based on the article in the Treaties which defines what are regulations what are directives and so on. And so the British government said: that article says for the regulations that they are directly applicable from which we have to conclude that, as it doesn’t say this for directives, so directives are not. So to respond to this argument the Court said the following, the Court said: the fact that this article says that regulations are directly applicable does not mean that other acts, eh, it doesn’t mean that if it says for one thing that it is something and it doesn’t for the other, you shouldn’t conclude out of this that this other thing  is therefore not.

FELIX RONKES AGERBEEK: So basically no a contrario reasoning.

TAMARA ĆAPETA: Yeah. And then we came to Faccini Dori in which the Court said that directives don’t have horizontal direct effect, and then the Court used the same article and the Court said: because it is only stated for regulations that they apply directly in the Member States and can only impose obligations directly on individuals, therefore other acts in that article for which this is not written, directives among them, do not have horizontal direct effect — okay? Now I would say that if a robot was working on the premise of the first interpretive rule created in Van Duyn, it would come to a different conclusion. So this is why obviously, it was not that interpretative rule that was what guided the Court. In any case, [a] robot would not learn from this how to come to the same conclusion in Faccini Dori as the Court did.

FELIX RONKES AGERBEEK: Having read your article I asked ChatGPT: can artificial intelligence replace judges at the European Court of Justice? And the response was: ‘AI systems are not capable of making decisions in complex legal cases, as they lack the ability to empathise and interpret the subtle nuances of a case. The role of a judge requires an understanding of the law and an ability to interpret it in the context of the specific case. This is something that AI cannot do, and therefore AI cannot replace judges at the European Court of Justice.’

TAMARA ĆAPETA: Good. Yeah, so but you see, GPT mentioned empathise. Of course, I guess that ChatGPT extrapolates this from some article that he reads…

FELIX RONKES AGERBEEK: Nobody knows from where...

TAMARA ĆAPETA: Yeah, who knows from where. And the majority opinion today is that… I mean I haven’t actually read yet an article which says [the] opposite, that artificial intelligence will once replace judges. However, if you put it just logically, it is in contradiction, no? If we claim there are rules that lead you to the correct decisions, that would necessarily need to lead to the conclusion: yes, so then the machines who can learn that rules can do it. And they can do it very quickly, in a matter of seconds. So that already is a proof that this is not what judging is all about.

FELIX RONKES AGERBEEK: One of the things that you argue and argue strongly for and also specifically for the Court of Justice is to be more transparent about that, not to hide this so much as is currently done.

TAMARA ĆAPETA: That is true, that is true, that in a recently published chapter in a book, which I wrote together with Nika Bačić Selanec, where we try to explore the notion of the rule of law. Because everybody was talking at a certain point about the rule of law, but everybody was talking a lot about how the Court sees what the rule of law is and imposes this on other branches of government. What we wanted to ask is: what is the rule of law when applied to the Court? And then one thing that we could think of is that what the judges should be doing at least is responding to all important arguments, I would say, in the case, because sometimes in the cases there are so many arguments that you cannot respond. But respond specifically and even with more accent to those arguments which did not win in the end. And that would already be a lot. That would already be explaining why you didn’t except this argument but accepted another argument. One important part of judging is that in the end the judgments are accepted. And judgments are more easily accepted if they are understood, even by the losing party. So in a way this transparency is something that in my view would enhance the legitimacy of judicial decision making. Even though it would go into admitting that this is not really so objective. But I think it would actually boost the legitimacy. But you know what, the factor here is again what we started with and this is time. There are time constraints all the time and of course this would take much more time. I mean, there are always discussions also about the Court of Justice having dissenting opinions, which of course does not fit its collegiate way of decision making at the moment, but that would certainly prolong cases even further. 

FELIX RONKES AGERBEEK: If you take the argument of ideology and worldview, if you take it seriously, how much would you then eventually require in terms of reasoning? How detailed, how personal should it become?

TAMARA ĆAPETA: Well, it depends where the line, border, for this personal is. It’s like, you know, there were some legal realists that were claiming that you know… and there were even some I think researches proving that judgments in the morning and judgments in the afternoon are not the same. And it depends on what you ate in the morning and... 

FELIX RONKES AGERBEEK: So then you would have to mention all of that…

TAMARA ĆAPETA: Whether you should actually mention all of that I’m not really sure… {laughing}. But yes you are right, I mean I always felt that something more should be said, but I was aware that it is difficult. I am now even more aware.

FELIX RONKES AGERBEEK: But that does bring to a question that you already touched upon. To what extent is that kind of reasoning, that type of transparency, compatible with the collegiate system of the Court?

TAMARA ĆAPETA: I think it might be very difficult for the Court that is maybe not unison to explain what really motivated the judgment. So they have to give one judgment and that makes it more problematic to explain why if they really don’t agree all of them. I could imagine, you know, the judgment in which the judges did not agree upon everything which doesn’t have dissenting opinions but in which whoever drafts the judgment admits that. And spends several paragraphs on saying: and there was a serious discussion in the Court about this and this issue, and there were these and these arguments, and the Court for  these and these reasons, in the end decided to go this way. In this Court the judges have limited mandates. So they have to be reappointed by their governments, so in a way protecting anonymity of the judges makes some sense, but it is not necessary to relieve that. You can just say relatively neutrally that there was a discussion about this. Of course, dissenting opinions are different, then you really state your personal position. And I do believe that the system of dissenting opinions at least has potential to improve the judgments. But this is much more time consuming, this is much longer in terms of number of pages and everything, and it doesn’t the way how at the moment [the] Court works. However, this is the choice of the Court. It is not that the Court has to do it like that. I can appreciate that the Court finds it good. The problem I have that this is posited as a given truth, that it has to be like that. It doesn’t. It is even, there is still a rule that says that the judges vote. And there is nothing to prevent that the outcome of the vote is for example revealed. You can say okay this judgment was reached by 3 to 2. But we chose not to do that. Outward now the judgments look as unison judgments, so it seems that this is how it should be. And it also has something to do with our perception of law as objective. So we are giving you what it is. As soon as you diverge from that and you admit that there was voting — there was disagreement or something — you are departing from this narrative that we have created, which then creates additional problems, which in my view does not necessarily mean that we have to safeguard this narrative, but I do see the problem that this might cause.

FELIX RONKES AGERBEEK: I have to admit, and here is a bias on my part, that I am actually quite partial to the collegiate system. And it’s not because it upholds the formalist narrative — even though that is something it ends up doing — but more because I think it has advantages for the deliberative process. I obviously don’t know this for sure but my guess is that the collegiate system, more than a system of dissents, encourages the judges to really listen to each other and engage with each other’s arguments and to accommodate each other’s views. And maybe this also makes the court as a whole a bit less categorical, which can be a good thing, especially in a pluralist society. And the collegiality system also instills this idea that as a judge you are part of something bigger than yourself.
But the problem I see is that these advantages of the system of collegiality are invisible to the outside world. But the disadvantages — the lack of transparency, the awkwardly drafted judgments — they are very salient. And it is the other way around for the system of dissenting opinions. There the advantages are immediately visible. But what is much harder to see is the polarisation that it may cause within a judicial body. The effect of emphasising the person instead of the institution. And also the increased risk of volatility in the case-law, as we can see in the case-law of the US Supreme Court.

TAMARA ĆAPETA: You are completely right. That’s why I said that you know there is a reason there must be a reason why the Court chose to work as a collegiate court and not as something else. However, I don’t think we should present is as a given necessity — just as something the Court has chosen and this then for academia means the other thing, they have to discover why the Court has chosen that, not just take it for granted. And then we can discuss what are the plusses and what are the minuses of this. But still in the collegiate way of judgments I think there is a room for addressing differences of opinion openly — more openly. 

FELIX RONKES AGERBEEK: Okay. Time for the final question. What are three books that have influenced you and that you would recommend to the audience?

TAMARA ĆAPETA: I do like science fiction and I read a lot of science fiction and a book that I read recently is a Chinese book, by a Chinese author Liu Cixin. And the book with which he became famous was called The Three Body Problem, and what fascinates me about this book is the imagination that this author has. So I mean the... one nice thing about science fiction is that it is relating to the current world, but it also tries to imagine the possibilities of different worlds. So it makes you think also of what else could there be. The book has the normal plot, you know, like books have in science fiction, this one is also about encounters with aliens. But most importantly it imagines a world that I would never [have] thought of. This is what fascinated me in that book.  So Liu Cixin, the trilogy starting with the Three Body Problem.
The second book is something that maybe many people would say and this is Yuval Noah Harari’s book: Sapiens, A brief history of humankind. And I have to say that I was completely impressed with that book. I was not very much a person of loving history from school on, and one of the reasons possibly is because nobody gave me the macro picture. And this book actually offers the big picture, and it offers it in an incredibly nicely written way. It is so easy to read this book. It is so clear. And I was like, you know, I was reading it and I couldn’t stop reading it, so it is really a great book. I do know that there was a lot of controversy within the world of academia whether this is scientifically backed and so on, but I didn’t read it really in that way. And this book is not only about history, it actually tries to comprise different areas, anthropology, biology — there is a chapter about happiness. And it has this wonderful idea which is in a way not a novel idea, but it is stated in such a way in this book that I was really… I even used it in some of my works… This idea about human beings being the masters of this planet because they developed the possibility of being bound together by stories. By something that doesn’t exist. I mean law is the perfect example. Law is a story. Nothing in the law is there — you cannot pick the law from somewhere. I mean: we invented everything. 
And then I was thinking, okay, I am going to give you a third book, something, like, normal. And one book which I read some time ago is David Mitchell’s Cloud Atlas. There is a film today as well so many people might know it by the film. But [the] film is no good without the book, and the book is fascinating for me, not only because of the story and the way how it was written — this is called the Russian dolls method, merging together different stories telling them part by part. So he is like starting the 19th century, if I remember well. Then the second story coming to the twenties, thirties, then somewhere seventies, then today, and then he goes to the future. And he tells the stories and then goes back with those stories, so he ends the book with the first story. But what most fascinated me in that book is the language. I really enjoyed reading that book, because what he did is that, for each story that he has, which happens in different periods, different time periods, he has different language. And he invents for the future, he invents a different language, when he comes to this consumerist society he invents the language which is using commercials and brands and so on. And then when he comes to the apocalyptic society in the end when people forgot already about science and culture and everything, he develops this very primitive simple language and so on. So I found it… that’s what was most fascinating for me in that book. Apart from that the book is very interesting. Every story in itself is very interesting and the characters in each of these stories, it does work out the characters well, in a way like Woody Allen movies for example work on characters a lot. I think that this book also covers this part very, very well.

FELIX RONKES AGERBEEK: Tamara Ćapeta, thank you so much for this conversation.

TAMARA ĆAPETA: Thank you. I am honoured that you invited me for this podcast and I wish you all the luck with the podcast, and I am going to follow it.

Podcasts we love