For the theory building that is necessary to answer such questions, empirical information is vital. After all, it is not possible to make normative statements about judicial decision making without knowing what is going on in the reality of judicial decision making. This blog post is a prelude to such empirical research. I build on socio-legal theory to sketch the background of the development of courts into an arena for societal change, and describe how courts might have to take recourse to new and more consequentialist styles of reasoning if they want to take account of the societal effects of their decisions.

Social reality and the law: From codification to modification

The conference on Courts as an Arena for Societal Change builds on a classical theme in legal scholarship: the dynamics between ‘the law’ on the one hand, and ‘social reality’ on the other. The notion that it is somewhat artificial to make a crude distinction between the two, and that law and social reality are rather intertwined, is nothing new to many Dutch legal scholars. Of course, law does not function in a vacuum, but is rather informed by societal beliefs. This close relationship, with its roots in the 1919 judgment of the Dutch Supreme Court in the case Lindenbaum/Cohen, has been a fact of life for generations of law students. In this case, it became clear that courts play an important role in codifying societal attitudes into the law’s open norms. In order to do so, judges have to apply a backward-looking mode of reasoning. This means that judges have to identify societal beliefs with regard to a specific topic and use these to interpret a certain norm, in order to subsequently apply this norm to the facts of a case.

But recent developments have added a new element to the relationship between the law and social reality. Whilst the legislature and other governmental entities seem to step back and leave pressing societal questions unanswered, the courts are petitioned to step in. In order to provide answers to the open questions and societal debates, recourse is nowadays often sought to the very same open norms. Such open norms are in those cases not only used as a means for codifying societal perspectives, but parties use them as a vehicle to modify the society in the desired manner.

Party transcending effects of judicial decisions

‘Far-reaching nitrogen ruling puts building permits for more than 30 thousand homes in doubt’ and ‘climate cases are bad for Dutch business’. These are just two very recent newspaper headlines, referring to court decisions with a tremendous impact on Dutch society. These are consequences which may as such not be desired (and also potentially unforeseen) by the petitioning parties, but still result from the court’s decision. The examples of such cases are numerous. One can also think of recent court cases dealing with health and safety of Dutch citizens. However, also cases that do not deal with the big societal questions might impact society. Liability cases may, for example, lead to rising insurance premiums or cause medical professionals to behave defensively with adverse effects for the quality of healthcare.

The common denominator is that in all of these cases, a court decision does not only impact the parties to the individual dispute, but also many individuals that are not represented in the courtroom, or whose existence is still even unknown. In short, in such cases, the courtroom truly functions as an arena for (smaller or larger) societal change.

To date, the debate in legal scholarly literature has mainly focused on a normative discussion of such cases. For example, the question was raised whether it is really up to the judge to give directions to societal developments, or instruments were proposed for judges to acquire the right information about the societal impact of their decision. In my research, I take a step back and focus on the more legal-sociological question of how judges themselves reflect on the potential societal changes that they anticipate to be the result of their decisions. Does it actually matter for the judicial decision-making process in an individual case whether Dutch industry would indeed leave the country as a result of (potential) liability for climate change? Or does the judicial approach towards cases of medical (civil) liability change, now that we know that the behavioural impact of the threat of such liability seems to be limited? We know that the societal impact of legal rules is notoriously difficult to measure, so how do courts weigh information with regard to the impact of their decisions, given the fact that judges are no sociologists, economists or political scientists? And how do courts assess whether a certain effect is desirable or not?

Judicial reasoning and the social genesis of law

In cases in which courts are petitioned to bring about societal change, judges are confronted with the party-transcending impact of their decisions. They do not only have to solve an individual dispute, but also have to reflect on the consequences of their solution for society at large, or the behavioural implications of the legal standards they have formulated. The consequences of a judicial decision – or in legal-sociological terms: its social working – may therefore change the dynamics of the judicial decision-making process. We could potentially describe this process as a (form of) social genesis of judicial decisions.

A social genesis of judicial decisions comes with a form of judicial reasoning that is forward-looking and of a consequentialist nature. Judges have to anticipate the impact of their decision and evaluate whether this impact should play a role – and if so, what role that should be. In short: taking account of consequences has implications for the perspective of a judge. Instead of looking backward at the legal norms and the statements of parties, judges now have to look forward and deal with uncertainty, ambiguity and potential subjectivity that comes with predicting and evaluating the consequences of one’s actions, and the interaction of these consequences with other people’s behaviour.

In order to understand this process, we have to look behind the bipartisan perspective that forms the basis of Dutch procedural law. During my presentation at the conference, I will further delve into empirical methods that can be useful for lifting this veil. I hope to see many of you there, and to be able to discuss these insights with the audience.

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.