'Constitutionalizing in the Anthropocene' (Tilburg Law School Research Paper) by Floor M. Fleurke, Michael C. Leach, Hans Lindahl, Phillip Paiement, Marie-Catherine Petersmann and Han Somsen comments
The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’ and ‘nonhumans’ as well as its treatment of ‘humans’ as a singular global geophysical force, presents fundamental challenges to constitutional theory and practice. First, in terms of conceptual and foundational transformations, the Anthropocene provokes the reconceptualization of legal relations as never limited to human concerns, but always and already part of more-than-human collectives, in which both humans and nonhumans act with co-agency, in recognition of shared vulnerabilities and in relations premised on care. This reconceptualizing demands a new understanding of representational practices that could constitutionalize more-than-human relations as political and legal collectives. Second, emergent technologies such as genetic and climate engineering introduce fundamental questions about regulatory modalities available in the Anthropocene, and the role law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system processes to achieve pre-established regulatory goals. This possibility raises critical concerns about the remaining role for law in legitimizing and enabling such developments. Finally, the temporal dimensions of the Anthropocene thesis cast a critical light on law’s potential for driving radical transformations in (un)governance. In imagining future legal institutions capable of manifesting more-than-human constitutionalism, it is necessary to excavate the historical role that foundational legal principles and institutions – such as sovereignty and personhood – have had in facilitating exploitative relations within and beyond humans.
'Just Versus Quick: Constructivist and Ecological Rationality in a Common Law System' by Stephen Gageler (2022) 45(2) Melbourne University Law Review 830 states
Justice Gageler explores how lessons from behavioural economics are reflected in the institutional structure in which the judicial function is performed. The structure has what the economist Vernon Smith would call an ‘ecological rationality’, an internal logic that minimises errors in human judgement. Features of the structure which combine to have this effect include the appointment of judges from senior ranks of the legal profession, the security of judicial tenure and remuneration, the decisional independence of the judge, the personal discipline of the judge, the requirement to give reasons, and the appellate process. These structural features also carry risks to the quality of adjudication, calling for what Smith would call ‘constructivist’ intervention. Delay in the production of judgments is one of those risks. The challenge in designing a constructivist solution to the problem of delay in the production of judgments is that of striking an appropriate balance between speed and correctness without compromising decisional independence.
Gageler J comments
From time to time, we engage in Australia in spontaneous national conversations on matters pertaining to the judicial function. The conversations tend to be sparked by some public utterance of a senior practising lawyer or former member of the judiciary, to gain immediate but fleeting attention in the mainstream media, and then to fester at length amongst members of the judiciary. The conversations are not conducted by the participants speaking to each other, or even in the presence of each other, but by them separately delivering learned speeches to learned audiences. We have for some time been engaged in a conversation about judicial productivity. This is my contribution.
Over a decade ago, the High Court of Australia made a decision that marked a hardening of judicial attitude against delay in the conduct of litigation. On the third day of the four-week trial of a civil proceeding that had been pending in the Supreme Court of the Australian Capital Territory for nearly two years, the plaintiff had applied for an adjournment and for leave to amend its statement of claim to add a substantial new claim against the defendant. The primary judge had granted the adjournment and the amendment. The Court of Appeal of the Australian Capital Territory had upheld that decision. The High Court unanimously reversed. The plurality in the High Court said that the primary judge and the Court of Appeal had given insufficient attention to the overriding procedural objective identified in the modernised rules of the Supreme Court of the Australian Capital Territory of facilitating the just resolution of the real issues in civil proceedings with minimum delay and expense.
In a concurring judgment, another member of the High Court drew a parallel between the plaintiff’s delay of two years in attempting to amend its statement of claim and the Court of Appeal’s delay of some six months in delivering judgment after hearing the appeal to it from the decision of the primary judge. He concluded:
The proceedings reveal a strange alliance. A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other. Are these phenomena indications of something chronic in the modern state of litigation? Or are they merely acute and atypical breakdowns in an otherwise functional system? Are they signs of a trend, or do they reveal only an anomaly? One hopes for one set of answers. One fears that, in reality, there must be another.
The current conversation about judicial productivity is a belated attempt to grapple with the questions posed in those remarks. The conversation began three years ago when the author of the remarks delivered a post-judicial speech, the substance of which was reproduced in a national newspaper. The speech was based on a statistical analysis, undertaken by the author himself, which compared for sample periods the average time between the conclusion of a hearing and the delivery of judgment taken by judges at first instance in the Commercial Court and in the Chancery Division of the High Court of Justice of England and Wales, in the Equity Division of the Supreme Court of New South Wales and in the Federal Court of Australia. The comparison, according to the author, suggested ‘that the two Australian courts are slower than the English courts and that the Federal Court is the slowest of all’. ‘The Australian performance, particularly the Federal Court performance’, the author went on to opine, ‘is a matter for shame’. Something needed to be done about the delay, the author said, and ‘[i]f all other solutions fail, the only remedy may be the persistence, intensity, even savagery, of judicial, professional and public criticism’.
The particular subject of judicial productivity in the Federal Court of Australia was soon afterwards taken up in another national newspaper. There it was reduced to a table, the online version of which was interactive. The table ranked each of 69 then-current and recent Federal Court Justices not only by reference to the average number of days each of them took to deliver a written judgment, but also by reference to the average number of words and the average number of paragraphs each of them produced per day.
Not unsurprisingly, the Chief Justice of the Federal Court and the Chief Justice of New South Wales weighed in on the conversation. Both accepted unreservedly the undesirability of delay in the delivery of judgments. Both nevertheless pointed out the crudeness of adopting a purely quantitative measure of judicial productivity, echoing the memorable and oft-repeated observation of a former Chief Justice of New South Wales that ‘not everything that counts can be counted’. Both pointed to the inevitability of a degree of trade-off between the quantity and quality of judicial output. Both also pointed to the need to take a system-wide perspective. A judge working quickly to produce a large number of low-quality judgments only to have many of them set aside on appeal, they pointed out, cannot thereby be said to be contributing more to the administration of justice than a judge working more slowly and more carefully to produce a lesser number of high-quality judgments, few of which are set aside on appeal.
My own contribution to the conversation picks up on those themes and develops them at a level of abstraction unrelated to criticism of the productivity of any individual court and unrelated even to consideration of the productivity of courts within any individual national or sub-national system. What I want to do is to explore the subject of judicial productivity at a conceptual level by focusing on the essential nature of the judicial function and on the institutional setting in which that function falls to be performed.
