Courts as Consiglieri: Advisory Opinions in a Comparative Constitutional Perspective

Courts in many jurisdictions contribute to the process of constitutional law-making, not just by exercising adjudicative powers, but also as advisers. This judicial advice-giving remains controversial. Much of the debate focuses on 'advisory opinions' as a doctrinal concept, ignoring the rich variety of judicial advice, and the many different contextual and institutional settings settings in which it takes place. This article advances a functional approach to judicial advice-giving, understanding it to be a communicative act by which courts contribute to the process of law-making on the basis of persuasion and judicial authority. This approach allows a more broad analysis of advisory opinions, focusing on function, type of advice, and institutional modes of advice-giving. By connecting function to form and content, this article attempts to move beyond the binary question whether or not advisory opinions can be squared with the judicial function in a liberal democracy.