A new role for the courts

The increasing recognition of rights in our constitutions as well as their progressive protection through international courts have led civil society to actively claim their effectivity. But when a given legal system does not provide adequate institutional channels for the protection of these rights, the courts appear to be the last resort. Therefore, it seems very difficult to prevent the courts being part of the initiated public discussion and subsequent political debate.

Although this experience appears to be new, the recent emergence of climate change litigation and other related human rights claims, shows that the phenomenon is neither new nor limited to European countries. The same applies to the debates on whether courts should or should not decide on political issues.

We can look at the public interest litigation practice developed in the second half of the last century in the United States of America to find some antecedents of a new form of adjudication (see Chayes). Many of those cases were the consequence of the growing functions of the welfare state and the need for citizens to go to the courts to protect their rights from any abuses.

Public interest litigation, however, is not an American monopoly, and we also see a well-established practice in the so-called Global South area, which includes countries like South Africa, India, Indonesia, Argentina, Colombia, Peru as well as other Latin American countries (see Bonilla). The constitutional reforms that occurred in many of these countries in the 1990s may explain the development of this body of claims. They are characterised by presenting the arguments based on the human rights conceptual framework, being defended by civil society actors belonging to the civil society (NGOs) and aiming to stretch the gap between the constitutional promises and the real fulfilment of the fundamental rights.

Despite this expansive phenomenon, the main theoretical discussion focuses on the legitimacy of the judiciary – as the non-elected branch of the State – to take part in a debate that should be left to the more democratic parliament or the executive branch (see Gargarella). Additionally, it should also be noted that political issues have a polycentric texture (see Fuller) and therefore the judiciary might not provide the proper context for the consideration of the tensions among different interested groups. It is argued that although this rationale is habitual for policymakers, judges are not used to managing these kinds of conflicts.

Moving a little further in the discussion

It becomes essential, nonetheless, to understand that we are facing a very deep-rooted social movement that cannot be stopped by theoretical discussions or by the limitations stated by procedural law. To move further in the discussion, I suggest that we should not accept facts as being set in stone and should be creative in considering reforms to be introduced in civil justice to provide a legitimate response to human rights claims (see Ucin). I, therefore, claim that there is room in civil procedure – with some necessary changes – to legitimise the role of courts through a more deliberative intervention. This may imply greater participation in the process of interested groups and a more exigent standard of argumentation for the decisions.

My first claim, then, is that there is no impossibility, neither theoretical nor institutional, for the courts to decide on political issues while guaranteeing human rights. On the contrary, it is clear that this is included in the duties of judges in the context of constitutionalised normative systems.

Secondly, I argue that the fact that civil procedure is at present inadequate for a legitimate intervention of the courts does not imply that we may not promote judicial reforms to enhance the participatory element within the public interest procedures. For this purpose, it is relevant to overcome the traditional dyadic form of the procedure, where only two parts are in conflict, and consider the importance of having a representation of the different affected groups and the interests at stake This could provide a more representative basis for the procedure and could be implemented through public hearings that could allow the judge to better understand the issue and design accurate solutions for these polycentric conflicts.

Last but not least, I claim that the role of judges in public interest procedures changes because the legal debate is not limited to private values, but it particularly refers to public ones. Therefore, the legitimacy of the courts could be improved if we enforce their duty of justification of the decision. In the context of fundamental rights adjudication, the proportionality test (i.e. reasonableness test) appears to be crucial since it respects the discretion of political branches. I suggest that in cases related to public policies or other political issues, the proportionality test could be completed by adding several substantive standards like the ones elaborated on by the international human rights protective bodies (e.g. CESCR, see Pautassi & Abramovich). In this way, the decision may provide a detailed explanation of the reasons that support it and its accordance with the respect for human rights values.

In contemporary societies, the full role of the judiciary is to protect citizens and their rights from any violations arising from actions by States or other private actors. But this does not mean we should empower judges without preserving the due process guarantee and, therefore, we must find ways that can balance the interests at stake while they enforce democratic procedures. Then, and before closing these lines, I would like to come back to my opening question, but rephrasing it: what if we promote legal reforms that can help courts enhance our democratic debates?

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.