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The Civil Court as Risk Regulator: The Issue of its Legitimacy

Published online by Cambridge University Press:  22 March 2018

Marc A LOTH
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Abstract

Taking the Urgenda case on climate change liability as an example, this article researches the more general question into the legitimacy of risk regulation by civil courts. Which principles determine the legitimacy of a civil court’s participation, especially in the domain of societal risk regulation? The central claim is that these principles concern (amongst many other things) the position of the court, the tools of the court, and the attitude of the court. In other words, they have their source in constitutional law, civil (procedural) law, and professional ethics respectively. This claim is substantiated by an analysis of these principles, their interpretation, and the way they contribute to a normative/theoretical framework for the assessment of the legitimacy of judicial rulings.

Type
Special Issue on Judge-Made Risk Regulation and Tort Law
Information
European Journal of Risk Regulation , Volume 9 , Special Issue 1: Special Issue on Judge-Made Risk Regulation and Tort Law , March 2018 , pp. 66 - 78
Copyright
© Cambridge University Press 

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Footnotes

*

Professor of Private Law, Tilburg University. The author thanks Josephine van Zeben, Ivo Giesen and Elbert de Jong for their useful comments on an earlier version of this paper.

References

1 A Nestlen, “Dutch government ordered to cut carbon emissions in landmark ruling”, Guardian (24 June 2015), <www.theguardian.com/environment/2015/june/24/dutch-government-ordered-cut-carbon-emissions-landmark-ruling>, accessed 16 February 2016.

2 Rb. Den Haag, 24 juni 2015, ECLI:NL:RBDH:2015:7196. For the English translation: Court of The Hague, 24 June 2015, ECLI:NL:RBDH:2015:7145: Rb. Den Haag, C/09/456689/HA ZA 13-1396.

3 Schutgens, R, “Urgenda en de trias: enkele staatsrechtelijke kanttekeningen bij het geruchtmakend klimaatvonnis van de Haagse rechter” (2015) NJB 2015/1675Google Scholar; Bergkamp, L, “Het Haagse klimaatvonnis: rechterlijke onbevoegdheid en de negatie van het causaliteitsvereiste” (2015) NJB 2015/1676Google Scholar.

4 R van Gestel and M Loth, “Urgenda: roekeloze rechtspraak of rechtsvinding 3.0?” (2015) NJB 2015/1849. M Loth, “Climate change liability after all: A Dutch landmark case” (2016) Tilburg Law Review 21. In this line also (but before the Urgenda decision was issued): Spier, J, Shaping the Law for Global Crisis (Eleven International Publishing 2012)Google Scholar; Drion, C, “Van een duty to care naar een duty of care” (2007) NJB 2007/45-46Google Scholar; Hartlief, T, “Een rechtszaak uit liefde” (2013) NJB 2013/2448Google Scholar.

5 Kilinski, J, “International climate change liability: a myth or a reality?” (2009) 18 Journal of Transnational Law & Policy 378Google Scholar.

6 Lin, J, “The first successful climate negligence case: a comment on Urgenda Foundation v The State of the Netherlands, Ministry of Infrastructure and the Environment” (2015) 5 Climate Law 65 CrossRefGoogle Scholar; RB McKinstry Jr, “Potential implications for the United States of the Urgenda Foundation v The Netherlands decision holding that the UNFCCC and international decisions required developed nations to reduce emissions by 25% from 1990 levels by 2020” (2015), http://ssrn.com/abstract= 2632726, accessed 17 July 2015; van Zeben, J, “Establishing a governmental duty of care for climate change mitigation: will Urgenda turn the tide?” (2015) 4 Transnational Environmental Law 339 CrossRefGoogle Scholar.

7 Since the position of the court is established in constitutional law, its tools are provided by civil (procedural) law, and its attitudes are part of their professional ethics. It is important to note right from the start that my claim is that the interpretation of the constitutional and the civil (procedural) law principles involved ultimately rests on diverging moral attitudes displayed by the courts (which are regularly conceptualised as “restraint” and “activism”). My claim is not that the choice of attitude is in some way facilitated by the principles involved, although that is not entirely nonsensical. There is always an element of circularity in justification.

8 See Epstin, L and Knight, J, The Choices Justices Make (CQ Press 1988)Google Scholar.

9 Schutgens, R, “Urgenda en de trias: enkele staatsrechtelijke kanttekeningen bij het geruchtmakend klimaatvonnis van de Haagse rechter” (2015) NJB 2015/1675Google Scholar.

10 I have rephrased the following lesson in constitutional law in my own words, especially with regard to the distinction between the subordinate role of the judiciary in lawmaking, and its leading role in legal protection.

11 Waterpakt [2003] ECLI:NL:HR:2003:AE8462 (HR).

12 This phrasing is borrowed from Glendon, MA, A Nation under Lawyers, how the crisis in the legal profession is transforming American society (Harvard University Press 1994)Google Scholar.

13 Shapiro, M, Courts: A Comparative and Political Analysis (University of Chicago Press 1981)CrossRefGoogle Scholar.

14 Because they are institutional concerns, they not address the content of the decision (the duty of care or the remedy), but the position of the court (its place in the institutional organisation of the State).

15 I refrain from explaining the binding force of the different legal sources mentioned here. It suffices here to notice that under the Dutch Constitution the Court is under the obligation to apply self-executing provisions in international agreements directly in the Dutch legal system (Art 93, 94). This has resulted in a lively practice of human rights adjudication, as contained in the ECHR. Next, the courts of the Member States of the EU are European courts as well, which means that they are considered to be under the obligation to apply EU law within the national legal system, and to interpret the last in terms of the first. Finally, provisions of international agreements that have no direct effect for citizens in the national legal system, may have an indirect effect. The State is presumed to comply with its international obligations. This implies that a norm of national law may not be interpreted or applied in such a manner as to infringe such an international obligation, unless no other interpretation is available. This principle of consistent interpretation has the consequence that the Court is under an obligation to take into account these international obligations in interpreting national open norms and concepts (like that of due care). This so-called “reflex effect” of international law applies to norms of European origin as well.

16 See Tuori, K, European Constitutionalism (Cambridge University Press 2015)CrossRefGoogle Scholar.

17 The picture that it only applies to the relation between the national government and parliament, is already complicated by the fact that democratic decision-making is to be combined with the supposedly undemocratic character of judicial review (the so-called “counter-majoritarian difficulty”). The concept of “constitutional dialogue” is first presented in this context, to solve this difficulty by claiming that the courts engage in a dialogue with the legislator about the interpretation and application of constitutional norms. See Bateup, C, “The dialogue promise; assessing the normative potential of theories of constitutional dialogue” (2006) 71 Brooklyn Law Review 1109 Google Scholar; Bateup, C, “Expanding the conversation: American and Canadian experiences of constitutional dialogue in comparative perspective” (2007) 21 Temple International Comparative Law Journal 1 Google Scholar.

18 See Meuwese, A and Snel, M, “Constitutional dialogue: an overview” (2013) Utrecht Law Review 99 Google Scholar. See also Loth, M, “Who has the last word? On judicial lawmaking in European private law” (2017) European Review of Private Law 45Google Scholar.

19 Although some writers have stressed the communicative attitude of courts towards each other (see for example Slaughter, AM, “Judicial globalization” (1999/2000) Virginia Journal of International Law 40 Google Scholar; Weiler, JH, “The transformation of Europe” (1991) Yale Law Journal 100)Google Scholar, others have focused on their strategic attitude, while in fact they are both at play (see Loth, M, “De Hoge Raad in dialoog; over rechtsvorming in een gelaagde rechtsorde” (2014) Tilburg UniversityGoogle Scholar; Paunio, E, “Conflict, power and understanding – judicial dialogue between the ECJ and national courts” (2010) 7 NoFo 5Google Scholar. See also Dyevre, A, “Domestic judicial defiance in the European Union: a systematic retreat to the authority of EU law?” (2016) Yearbook of European Law 14CrossRefGoogle Scholar.

20 See Benvenesti, E, “Reclaiming democracy: the strategic uses of foreign and international law by national courts” (2008) The American Journal of International Law 241CrossRefGoogle Scholar. Benvenesti, Compare E and Downs, GW, “Going Global to Preserve Domestic Accountability: The New Role of Domestic Courts” in S Muller and S Richards (eds), Highest Courts and Globalization (The Hague Academic Press 2010)Google Scholar. The only court exempted from this development is the US Supreme Court, since it does need to participate in these judicial fronts. Breyer, Compare S, The Court and The World, American Law and the New Global Realities (Alfred A Knopf 2015)Google Scholar.

21 The distinction between position, tools and attitudes suggests a clear-cut distinction, while in fact the relations between constitutional law, civil (procedural) law, and professional ethics are not that simple. My intention, however, is not to deny the mutual influences such as the horizontal effects of human rights in private relations. It is just to make clear that for our purposes – the legitimacy of civil adjudicating – we need to address both constitutional law and civil (procedural) law.

22 The original formulation is: “Since there are occasions when every vessel will break away from her moorings, and since, as she does, she becomes a menace to those about her, the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) the probability that she will break away; (2) the gravity of the resulting injury if she does; and (3) the burden of adequate precaution” (see J Spier, “Uncertainties and the state of the art: a legal nightmare” (2011) Journal of Risk Research. See for the Dutch version [The Dutch Cellar Hatch] ECLI:NL:HR:1965:AB7079, NJ 1966/136 (HR). Another formulation is provided by Art 4:102 of the Principles of European Tort Law (PETL): “The required standard of conduct is that of the reasonable person in the circumstances, and depends, in particular, on the nature and the value of the protected interests involved, the dangerousness of the activity, (…) the foreseeability of the damage (…) as well as the availability and the costs of precautionary or alternative measures”.

23 See, among many others, Honoré, T, Responsibility and Fault (Hart Publishing 1999)Google Scholar. He speaks of the attribution of risks (“the risk-principle”) on the basis of distributive justice (“risk-distributive justice”). This goes for both known (falling into a cellar hatch) and unknown risks (asbestos, nano particles), which differ only in degree but not in principle. See de Jong, E, “Voorzorgsverplichtingen, over aansprakelijkheidsrechtelijke normstelling voor onzekere risico’s” (2017) MvVGoogle Scholar.

24 See Enneking, L and de Jong, E, “Regulering van onzekere risico’s via public interest litigation?” (2014) NJB 2014/1136Google Scholar. As the Urgenda case illustrates, public interest litigation may be a strong instrument against powerful repeat-players; see Nieuwenhuis, JH, “Op gespannen voet: een evenwichtstheorie over de betrekkingen tussen het publieke en het burgerlijke recht” (1998) NJBGoogle Scholar.

25 Article 3:305a of the Dutch Civil Code allows for class-actions by a legal person with the purpose of serving a general, collective or public interest, which is mentioned in its by-laws. This may result in an injunction of the court, not in the compensation of damage.

26 World Commission on Environment and Development, “Report of the World Commission on Environment and Development: our Common Future” (1987) Bruntland Report.

27 For an overview of the traditional legitimations I refer to van Gerven, W, Lever, J, and Larouche, P, Cases, Materials and Text on National, Supranational and International Tort Law (Hart Publishing 2000)Google Scholar.

28 Aristotle, Nicomachean Ethics, Book V, para. 2, no. 12, and paras. 4 and 5. There are different versions of the Aristotelian version of corrective justice, however, compare Weinrib, E, Corrective Justice (Oxford University Press 2012)CrossRefGoogle Scholar, Weinrib, E, The Idea of Private Law (Oxford University Press 2012)Google Scholar, revised edition, with Coleman, J, Risks and Wrongs (Oxford University Press 2002)CrossRefGoogle Scholar, and Coleman, J, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford University Press 2003)CrossRefGoogle Scholar. See also Wright, R, who compares “Weinrib’s explicit formalism” with “Coleman’s de facto formalism”: R Wright, “Substantive Corrective Justice” (1992) Iowa Law ReviewGoogle Scholar.

29 Because the decision of the Court on the fair share of the Dutch State rests not just on an attempt to right wrongs committed (as justified by the principle of corrective justice), but on a notion of the distribution of the burdens of precaution between states (as justified by its ideas on distributive justice).

30 See for example van den Berg, PGJ, Rechtvaardigheid en privaatrecht (Gouda Quint 2000)Google Scholar. See also Faure, MG, “The complementary roles of liability, regulation and insurance in safety management: theory and practice” (2014) 17 (5–6) Journal of Risk Research 689CrossRefGoogle Scholar.

31 For this “distributive justice takes priority view” see Dworkin, R, Law’s Empire (The Belknap Press 1986)Google Scholar, and Lippke, RL, “Torts, corrective justice, and distributive justice” (1999) Legal Theory 149. For criticismCrossRefGoogle Scholar see Perry, SR, “On the relationship between corrective and distributive justice” in J Holder (ed.), Oxford Series of Jurisprudence, Fourth Series (Oxford University Press 2002) 237Google Scholar, and Scheffler, S, “Distributive Justice, the basic structure and the place of private law” (2015) Oxford Journal of Legal Studies 213CrossRefGoogle Scholar. See also Benson, P, “The basis of corrective justice and its relation to distributive justice” (1992) Iowa Law Review 515Google Scholar.

32 For a thorough analysis of tort law as mechanism for risk-regulation see Cousy, HA, “Risks and uncertainties in the law of tort” in H Koziol and BC Steiniger (eds), Tort & Insurance Law (Springer Verlag 2008)Google Scholar.

33 One exception seems to be the Learned Hand formula, which is adopted in Dutch law in the form of the Cellar Hatch standard for the assessment of the wrongfulness of risk setting. One has to take into account, though, that as standard in law it is not applied as an algorithm, but as a catalogue of circumstances to be taken into account. This means that its application does not rest on an economic calculation, but on a legal decision.

34 I am using the notions of “internal point of view” and “external point of view” here roughly in the meaning of accepted legal practice since the work of HLA Hart and N MacCormick, that is, referring to participator’s and the spectator’s perspective respectively.

35 See for empirical research on this topic Mitchell, G and Tetlock, PE, “An empirical inquiry into the relation of corrective to distributive justice” (2006) Journal of Empirical Legal Studies 421CrossRefGoogle Scholar.

36 See Lucy, W, Philosophy of Private Law (Oxford University Press 2007) 266 Google Scholar: “Mixed theories are where the (intellectual) action is (and that’s a good thing too)”.

37 See for example J Gardner, “What is Tort Law for? Part 1: The Place of Corrective Justice” (2011) Law and Philosophy 50: “So there is no tort law without corrective justice, on the other hand, there has to be more to tort law than corrective justice”.

38 Lucy, supra, note 36.

39 See Loth, M, Rechtvaardige aansprakelijkheid: over herstel van autonomie, beginselen in het aansprakelijkheidsrecht, en de “maatmens benadeelde” (Kluwer 2016)Google Scholar.

40 This is a shift to an external point of view, although it has internal dimensions as well, since both conceptions to be distinguished have adherents in the judiciary as well (although they might not always be aware of it).

41 On this distinction between the “problem-solving conception” and the “public life conception” of adjudication, see Luban, D, “Settlements and the erosion of the public realm” (1995) Georgetown Law Journal 2619Google Scholar.

42 This same conception is to be found in the contribution of Douglas Kysar, elsewhere in this issue.

43 Again, subject to all the restrictions already mentioned, deciding case by case, ex post facto, on the ground of the concepts and doctrines of tort law.

44 There is a vast amount of legal theory on this (including HLA Hart’s reflections on the open texture of legal concepts and law in general, see Hart, HLA, The Concept of Law (Clarendon Press 1961)Google Scholar, referring (mostly) to Wittgenstein, Philosophical Investigations (Basil Blackwell 1978)Google Scholar; Wittgenstein, On Certainty (Basil Blackwell 1979)Google Scholar. Also interesting is Searle’s interpretation in the concept of the “Background” of our mental representation. See Searle, JR, Intentionality, an Essay in the Philosophy of Mind (Cambridge University Press 1983)CrossRefGoogle Scholar.

45 See for example Dickson, B, Judicial Activism in Common Law Supreme Courts (Oxford University Press 2007)CrossRefGoogle Scholar, and Tsen Lee, E, Judicial Restraint in America (Oxford University Press 2011)CrossRefGoogle Scholar.

46 Compare Scalia, A, A Matter of Interpretation, Federal Courts and the Law (Princeton University Press 1997)Google Scholar.

47 Breyer, S, Active liberty, interpreting our democratic constitution (Albert A Knopf 2005)Google Scholar.

48 Barak, A, The Judge in a Democracy (Princeton University Press 2006)Google Scholar. See also Barak, A, Purposive Interpretation in Law (Princeton University Press 2005)CrossRefGoogle Scholar, and de Visser, M and Witteveen, W, The Jurisprudence of Aharon Barak (Wolf Legal Publishers 2010)Google Scholar.

49 Sunstein, CR, One Case at a Time, judicial minimalism on the Supreme Court (Harvard University Press 1999)Google Scholar.

50 I prefer the predicate “activist” over alternatives like “progressive”, since an activist stand with regard to progressive legislation may result in conservative outcomes (and vice versa). There is nothing inherently progressive in judicial activism.

51 One can even speak of a “globalist” and a “localist” mindset of judges, see Mak, E, Judicial Decision-making in a Globalized World, a comparative analysis of the changing Western practices of Western highest courts (Hart Publishing 2013)Google Scholar.

52 In a historically important phrasing this ideal was formulated by Nonet, P and Selznick, P, Law and Society in Transition: toward responsive law (Harper & Row Publishers 1978)Google Scholar.

53 See Schutgens, R, “Urgenda en de trias: enkele staatsrechtelijke kanttekeningen bij het geruchtmakend klimaatvonnis van de Haagse rechter” (2015) NJB 2015/1675Google Scholar; Bergkamp, L, “Het Haagse klimaatvonnis: rechterlijke onbevoegdheid en de negatie van het causaliteitsvereiste” (2015) NJB 2015/1676 (n 4)Google Scholar.

54 One may say that logically the attitudes are the most basic determinants, but that epistemologically one may identify the attitude displayed by the interpretation of the principles involved. Again, there is always an element of circularity in justification. See Albert, H, Traktat über Kritische Vernunft (Mohr Siebeck 1975)Google Scholar.

55 Although the building blocks of our normative/theoretical framework are relevant for all judicial lawmaking, their application to the correction of a government’s policies with distributive implications clearly is not. This application is what we were looking for, of course, since we started with a research question referring to the domain of risk regulation. The normative/theoretical framework under construction can also be applied to other domains of judicial authority where its role may be disputed, however, like the domain of moral and ethical choices.

56 As Sunstein has pointed out, activism or restraint may be sensible responses in different circumstances, with regard to the case at hand, the specific characteristics of the domain, the position of the court, the distribution of opinions within the court, and many other circumstances, Sunstein, supra, note 49, 57–60).

57 This is not to say that anything goes, of course, in the sense that any decision is justified under this model, since it excludes outcomes that fall outside the scope of legal reason. What it does, however, is to ground the accepted possible decisions in legal practice, as it is displayed in judicial behavior. We may dislike some fragments of this practice, as we may like others, but the line between the two clearly does not coincide with the line between what may be considered as legitimate, and what is not.