This article is written by Souradh C. Valson from Government Law College Thiruvananthapuram and attempts to describe polycentric problems and their adjudication.
Table of Contents
Introduction
Decades back, an American legal philosopher named Lon Fuller conceived the term polycentric problems. According to him, certain issues of social character had a complex set of interconnected relationships. A change in any one of the components led to far-reaching and unforeseen effects on the other components.
A polycentric problem is often represented as a spider web. A simple pull on one of the strands will result in a distribution of tension throughout the entire string. Fuller asserted that the judiciary was incompetent to adjudicate upon polycentric problems. He argued that the framework of the judicial process was not aligned to understand the impact of a decision would have on the independent components. Additionally, he contended that the judiciary did not have the resources, time, or the necessary expertise to conduct an evidence-based, clear and a compromise oriented adjudicating method that is required to prevent the web from snapping.
What is an effective adjudication
- We can say that the nucleus of adjudication lies not in the mode of participation of the aggrieved parties in the decision but is almost entirely dependent on the office of the judge. If a judge is present to hear a matter, it entirely depends on the parties’ interest to present reasoned arguments and proofs. The parties may, if they deem fit, present no argument at all, or present an emotional argument, or may even request the judge to decide the matter based on the role of a dice.
- Therefore, to analyze adjudication, we must start from the office of the judge. The office of the judge has certain basic requirements such as impartiality; the judge hearing a case must be impartial, and he must give a reasonable opportunity to both sides to hear their views.
- The problem with the word judge is that; many people who hold official positions are called “judges” and are expected to act impartially but don’t participate in deciding polycentric issues. For example, judges at a singing competition or judges in an art exhibition do not fall under the general definition of a judge. Although a cricket umpire is not referred to as a judge, he is also expected to make impartial decisions.
- The key difference between these functionaries is that they don’t hold official positions. The distinguishing factor between these officials and courts, or boards of arbitration, or administrative tribunals is that their decisions are devoid of a structure that allows the presentation of reasoned argument or proof. The judge of a singing competition has the liberty to allow or not allow such a presentation; it is not an inherent part of his/her office to allow or attend it.
- On the other hand, if we consider a decision-making process that allows the aggrieved party to present pieces of evidence, proofs, and arguments, the office of a judge or an adjudicator is necessary.
- At this stage, one could make the argument that reasoned decisions are not only applicable in adjudication but also in other areas. For example, a speech by a political leader contains reasoned arguments to attract voters. However, this argument fails to include the important concept that the presentation of reasoned evidence in courts are institutionally defined and assured to the aggrieved party.
- In an election, we may actively participate and campaign for a candidate and present reasoned arguments for the voters. If the campaign was effective, then the candidate we campaigned for will win. However, in this scenario, the only latter part is guaranteed institutionally. Even if a campaigner is given the right to present a reasoned argument, the voters don’t need to hear and act upon it. Therefore, even in this case, there is a presentation of reasonable arguments, but the obligation to hear them is very negligible compared to a judge.
- Another example would be when we enter into contracts, we may or may not allow the presentation of proofs, but there is no established rule that may allow the presentation of proofs or that the other party will hear such proofs. However, there is an exemption in the case of bargaining in good faith.
- While entering into contracts, the parties are guided by certain rational considerations. For example, a farmer with a storehouse full of potatoes and very little onion will be cautious while trading potatoes for onions. However, it may be irrational for a trader with a surplus of onions and potatoes. These differences in considerations are the questions that come up before the courts. The standard of rationality in determining the questions relating to these considerations is higher before the courts than a mere exchange between the parties.
- An indirect approach to tackle this problem is by attempting to understand what is meant when we use the words a right or a claim of right. If A says to someone, “Give me that!” it doesn’t mean that A is asserting any rights. It could also mean that A is begging for that thing, or may also be threatening to give something over which A has no right. However, if someone claims to have a right over a thing, there must be a test, which conferred on him that right.
- Therefore, adjudication is a process that gives institutional and formal expression to reasoned arguments made concerning human matters. Adjudication imposes a greater burden of rationality, not present in other social structures. A decision made from a rational argument must be reasonable. A decision by an adjudicating authority has to conform to a stricter degree of rationality that is different from voting or contracts. This test of reasonability and rationality is both the strength and weakness of adjudication.
- After discussing the differences between adjudication and other forms of social structures, we must understand what types of tasks are not suitable for adjudication.
Polycentric issues
- The word ‘Polycentric task’ is derived from the book Logic of Liberty by Michael Polanyi. To understand the concept of polycentric issues, let’s look at some examples:
- A very wealthy man named ‘A’ died in New York, leaving behind a large number of artworks and collectables. In his will, he stated that his wealth was to be equally distributed between his two sons ‘B’, and ‘C’, without allocating specific apportionment. After the will was probated, the judge found a very serious problem. So now the question arises, how will the court divide the properties amongst the brothers. In this case, neither party could present relevant evidence or proofs against each other. Any adjudicator hearing such a matter should assume the rule of a mediator or propose the classical solution that; letting the older brother divide the property equally and giving the younger brother his share.
- Another instance of a polycentric issue would be in a socialistic setup where the courts have been vested with the power to decide the wages in society undertaking the usual method of adjudication. The problem is that courts are not equipped to keep up with the rapid changes in the economy. Another issue is that courts may not take into consideration the different effects that price changes will have. For example, a rise in the price of Aluminum will have effects on the price of steel, plastics, woods, and other metals. These separate effects will have a larger impact on economic repercussions. In this case, a normal method of adjudication by allowing each of the affected parties to present arguments and proofs will not work.
- In addition to the economic repercussions, there is a larger and more important question that needs to be addressed. The impact of these decisions will also require, in each specific instance redefining, the meaning of affected parties. To understand the impact of such a decision, we can visualize a spider web. A simple pull on any one of the strands will lead to a distribution of tension throughout the entire web. Increasing the tension on any one of the strands will not only increase the tension on other strands but will also create newer complex issues. This effect is prominent when an increase in tension causes any of the weaker strands to snap. This is an example of a polycentric issue because it has many centres. The points where the strands cross is an independent centre for distributing the tension.
- In another situation, if we had to assign the batting positions of players in a cricket team based on adjudication, it would result in an improper application of adjudication. Shifting one player to a different position will affect the entire batting line up. For example, shifting Rohit Sharma to Number 5 will have a set of carrying over effects, such as finding a new opener. In this situation, we are dealing with a problem that has different points of interaction and influence, and therefore beyond the scope of adjudication.
- Another important issue to address now is the differences between different polycentric problems. We should realize that these differences are very subtle. Polycentric issues are present in almost all the cases submitted for adjudication. Sometimes, the precedents set by courts will be used in a completely different instance, other than that which was intended.
- Again, consider a suit between an individual as a plaintiff and the railway board, and the court holds that not constructing an underpass at a specific railway crossing is negligence on the part of the railway board. However, the construction of several underpasses along the entire railway line would cause more harm than simply employing the simple Stop, Look, and Listen, board. In this situation, the decision to establish the rights and obligations of two parties is an ineffective solution for a polycentric issue. Certain factors cannot be presented before the court in an issue between two parties.
- The sad truth is that polycentric issues are hidden in almost all the decisions produced by adjudication. It is not a matter of separating good from bad but is about acknowledging the significance and relevance of polycentric issues to understand that adjudication has reached its limits.
Analysis
Even in the simplest cases, there are polycentric problems, which leads to questioning the effectiveness of the principle of stare decisis. To effectively adjudicate polycentric problems, the precedents should be liberally interpreted to include the changes as and when they arise. Decisions should be considered as a continuous one to include the complexities that arise in successive cases. However, if the courts adopt a strict or literal interpretation, the precedents will lose their flexibility, and therefore, will not be able to include the polycentric problems.
Examples of court’s polycentric decisions
- The Supreme Court’s decision on a PIL banned the sale of liquor at all restaurants, bars, hotels, and retail outlets situated within 500m of a state or national highway. This decision emphasizes the troubles caused by a polycentric adjudication. The court stated that the intended purpose was to reduce accidents by drunk driving. However, this decision has impacted several other people in a very negative way. Many people lost their livelihood, the tourism industry in states like Goa also suffered, and even members-only bars had to close due to their closeness with the highway. The Indian Constitution reflects Fuller’s views on polycentric issues and provides for a separation of power between the executive, legislature, and judiciary. The executive has the sole power in policy making. This decision was scrutinized for polycentric consequences and judicial overreach.
- The Karnataka High Court’s order directing Bruhat Bengaluru Mahanagara Palike (BBMP) to fill all potholes in the city within a day was seen as another instance of judicial overreach. The courts have the right to issue a writ of mandamus to public bodies to do their duty. However, the courts should refrain from instructing the public bodies on how to do an act. The reason being that it involves many economic and technical decisions that are outside the competency of the courts.
Recasting a problem as a judicial problem is one of the perils of adjudicating a polycentric problem by adjudication. In this case, the courts were only focused on filling all the potholes and did not consider the other factors connected with it.
Conclusion
We should consider that almost all the problems pending before the courts have polycentric elements. The courts can solve these problems by mindful intervention at the right time. Unplanned interventions to mitigate the problems created by incompetent governments and inconsiderate public policies will only worsen the issue
References
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