In an unprecedented ruling, the Hague District Court has recently compelled the Dutch State to reduce the greenhouse gas emissions of the Netherlands by 25% by 2020 based on the emissions levels of 1990. The Urgenda Foundation had successfully argued that the Dutch State was under an obligation to protect its citizens form climate change on the basis of domestic tort law.

For many this development is symptomatic of a broader, more general concern: a court engaging with a highly complex policy question, which is better left to other modes of decision-making. Lon Fuller makes the strongest and most fully developed argument along this view in his article on polycentricity. Although Fuller does not reference environmental protection specifically, his concerns are readily transferable: if threshold values for dangerous air pollutants are exceeded, regulators may resolve the matter through a vast number measures ranging from limiting vehicular traffic to long term shifts towards cleaner energy production. In essence, Fuller argues that choosing between these options or indeed setting binding targets with any nuance is a task ill-suited to courts.

This idea continues to hold great purchase in English public law: Mark Elliot and Robert Thomas, in their leading text book Public Law (2^nd edition 2014, p. 551) draw on the concept in support of an argument for judicial deference, especially with regard to questions of resource allocation. I will begin with an analysis of Fuller’s account, before providing my critique.

It is important to note initially that when Fuller references complexity in the context of polycentricity, he does not mean that the facts are difficult to establish. Rather, he defines the interconnection of multiple issues and the vast number of affected individuals as the defining features of polycentricity.

One may visualize this interconnection through a spider web. The instant that an action is taken to address an individual issue – a tug on any part of the web – it reverberates through the entire system, affecting both potential future actions, as well as the parameters that led to the original decision.

A good example can be found in price negotiations: suppose a major car manufacturer is seeking to agree the price for its vehicle Model X with the dealership network. Regardless of which price is eventually set by the parties, the result will affect the supply and demand for Model X from customers. This in turn alters a range of factors that were the basis for the original negotiations: wages, overheads, the profit margin of the dealer, production costs, insurance, and advertising budgets. Depending on the viewpoint, one may place any of these considerations at the heart of the decision-making process; hence the issue is ‘polycentric’.

According to Fuller these polycentric issues do not lend themselves well to adjudication for a number of reasons: first, cases before courts typically involve only two parties, second their respective interests in the outcome of the case are diametrically opposed. Third, the court can ultimately only satisfy one interest – by ruling in favour of one or the other party – and finally, third parties with other interests are typically unable to influence the outcome of a case, in spite of being affected by the ruling.

Fuller argues these deficiencies lead to four undesirable consequences: judges produce unintended results through their rulings; they selectively involve parties not represented in the proceedings; they make assumptions as to the facts; and attempt to recast the issue before them to better suit established patterns of judicial decision-making. Fuller thereby contrasts the bipolar nature of adjudication with the multipolar nature of polycentric issues.

This analysis leads Fuller to conclude that polycentric issues are best left to the markets to resolve. Apart from the economics of a free market, dominated by contractual obligations and managerial decision-making, Fuller curiously also understood this to include legislatures, which similarly employ negotiations, adjustments and deals to reach decisions.

There are a number of objections one might raise against Fuller’s argument and I will address the most pertinent ones in turn: polycentric issues, are abundant in the (legal) world and if taken at face value, Fuller challenges not solely adjudication, but any mode of decision-making; polycentric issues have been adjudicated by courts with reasonable success for centuries, yet the issue is raised only in certain policy areas. Finally, Fuller has difficulty accounting for ‘good’ judgments, where in spite of the morally consistent and desirable outcome his theory deems them excesses of judicial authority.

Polycentric issues are abundant in modern life and court rooms. On some level, all human action, and everything in the world is causally inter-connected. Although individual actions may appear trivial in their immediate consequences, collectively or individually they can have profound effects. The fact that humans discount certain actions as inconsequential speaks more to the limitations of the human mind, than to a property of the natural world.

Nonetheless, this complexity is managed by decision makers and they reach conclusions through a wide range of processes: for instance through majority voting, managerial decisions, contracting, and adjudication. Polycentricity, however, appears as a challenge to them all: no matter the process employed, decision makers frequently provoke unintended consequences by involving non-represented parties, making assumptions as to the facts and by attempting to recast problems into familiar patterns.

In light of these universal difficulties, why should polycentricity concern us solely with regard to certain policy areas such as human rights and the environment and not equally with tax and private law? On a consistent application, Fuller’s concerns are valid in any policy area: the politically, economically, and socially marginalized are constantly affected by decisions into which they had no meaningful input and may well be no more represented in the legislature than the courtroom.

Moreover, courts have arguably proven themselves competent in dealing with polycentric issues. The common law developed in an adversarial legal tradition, where scarcely any decision is limited exclusively to the parties before a court. Where controlling cases still hold sway (stare decisis), countless individuals who could not possibly have influenced their outcome are affected. Moreover, this system has been remarkably capable of addressing countless polycentric issues without necessarily succumbing to the pathologies Fuller identifies. In this regard, Fuller concedes that it is primarily a question of

knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

Even this more measured reading does however not alleviate a central concern. I believe this becomes apparent when considering cases with morally desirable outcomes that nonetheless exceed Fuller’s ‘limits of adjudication’. A good example is the landmark case of Brown v Board of Education. Ostensibly, the case concerned only the enrolment of the expressly mentioned children into a segregated elementary school. The implications of the judgment, however, undoubtedly went beyond this limited context: any state law that required segregation of public schools was henceforth unconstitutional.

This case challenges Fuller’s theory in two ways: the outcome is arguably morally sound, hence adjudication resolved the polycentric issue in an acceptable manner, and crucially, alternative modes of decision-making had failed the applicants. The broader ‘market’ environment and the legislatures displayed deficiencies that Fuller does not to adequately address. A market setting tends to operate poorly where grave imbalances in the bargaining power persist, this is especially problematic with regard to the politically, economically, and socially marginalized. Democratic legislatures for their part often gravitate towards majority preferences, which is problematic as individual or minority interests are often trumped in the absence of restrictions and safeguards (such as those found in constitutions). Moreover, minorities often simply do not hold sufficient political weight to effect legislative action, even if they are nominally included in the decision-making process.

Nonetheless, one may agree with the moral outcome of Brown, yet question the process by which it was reached. Some critics of judicial review indeed argue that judges should defer to democratic legislatures on the content and interpretation of rights, particularly in contentious policy areas.

In the circumstances surrounding Brown, one may question the democratic credentials of many US legislatures in segregated States, especially due to the widespread measures to prevent voter registration of minorities. Even when setting aside this objection, the most persuasive advocates of judicial restraint rely on egalitarian democratic theory. In terms omitting many of the complexities and nuances, they support limitations on the judicial review, particularly where individual rights are invoked by applicants. They condition this support on largely unhindered, equal participation of citizens in the democratic decision-making process. The input equality of citizens was, however, at the heart of the injustice in Brown: minorities were actively hindered in their access to the ballot box and almost all state services. The ostensible theoretical support for Fuller crumbles, as even the judicial review critical literature would generally support the decision in Brown.

While polycentricity is pervasive in modern legal adjudication, there is no clear evidence that entrusting such questions to courts is any less suitable than alternative modes of resolution. Courts, the legislatures and the markets are all prone to institutional problems that may lead to poor judgment in resolving polycentric policy questions. Hence, the argument has lost much of its impact, and particularly so when it is selectively invoked. Polycentricity may well encourage some level of judicial restraint, but it is not appropriate to reject the adjudication of polycentric issues, including environmental protection, on these grounds.

Stefan Theil is a PhD candidate in Law at the University of Cambridge. The author would like to thank Kaitlin Ball and the blog editors for helpful feedback on earlier drafts.

(Suggested citation: S. Theil, ‘Polycentricity – A Fatal Objection to the Adjudication of Environmental Rights?’ U.K. Const. L. Blog (10 Sept 2015) (available at: http://ukconstitutionallaw.org))