central and peripheral courts professional lawyers enjoy in most Western jurisdictions a quasi-monopoly of expertise. It only contributes in a modest way in the shaping of the major policies which characterise public governance. In most legal systems, judges have no or little democratic legitimacy. On politically sensitive issues, their decisions are likely to be challenged by their detractors as opinions of a judicial oligarchy – at odds with the by now exclusive democratic foundation of the polity.39 Thus, from occupying a central position in public governance because of their expertise in justice, lawyers have been driven to a moreperipheral area of state power, because in the classical analysis of political systems combining elements of monarchy, oligarchy and democracy, only the latter henceforth enjoys legitimacy. That may seem a grim prospect for young lawyers and law students. So far, law faculties and law schools, and the legal profession in general, have done little to stem the tide and enable law graduates to regain some of the lost ground. A more convincing command of the social sciences would be a start. Yet, during the same period that the social sciences’ ascendancy in public governance became more obvious, a new development has become increasingly important, re-asserting the lawyers’ role at the heart of public governance. Until a generation or two ago, human rights were mostly regarded in legal science as a marginal – i.e. peripheral – branch of the law, a side-line of constitutional law, an updated version of the nineteenth-century lists or catalogues of liberal rights and liberties enshrined in the new written constitutions or bills of rights. Since then, human rights have become an essential – ‘central’ – part of legal thinking, pervading all branches of the law, both public and private. The change reflects a wider shift in mentalities in Western societies, which owes much to various groups involved in human rights activism, 39 On several occasions, that issue has been addressed, specifically in the context of the United States, by US Supreme Court justice Stephen Breyer, see Breyer, Stephen 2010 and 2006; see also his transatlantic dialogue with the former French Minister of Justice and President of the Constitutional Council; Badinter, Robert – Breyer, Stephen 2004, and a collection of comparative essays, Gaboriau, Simone – Pauliat, Hélène 2003. A former president of the Dutch supreme court has also published a readable introduction for a wider public, Corstens, Geert 2014. 48
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