Judicial review of government action and the separation of powers: please separate

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James Ensor, Les bons juges, 1891

Questions concerning the climate and sustainability continue to stir up strong responses in society and are becoming ever more prominent on the agenda. These topics also raise important legal questions. A special blog series puts these important and wide-ranging issues in the spotlight. In this post, Jan-Baptist Lemaire sets out why the separation of powers-arguments often raised against judicial review of government action in climate cases do not hold.

The separation of powers is the elephant in the room for judicial review of government climate policy – and government policy in general. Governments’ argument is that climate policy lies within their discretionary power. Such power grants the government the space to design its policy as it wishes. Judicial interventions with this space would call into question the separation of powers.

The argument has not deterred courts from ruling against governments in climate cases. Still, the judge-legislator relationship is prevalent in public debates. Courts face difficulties in mounting a proper defense. This post argues that the entire argument is misplaced. Yet, the reason has less to do with the concept of separation of powers. Rather, the answer lies in a conceptual analysis of discretionary powers. To this end, we scrutinize four common justifications for invoking the separation of powers. I define discretionary actions as actions not mandated by a hard legal rule. The law does not prescribe one specific action one has to take. Instead, the law leaves open a range of a priori legally permissible actions.

Four Fallacies about Discretionary Powers

First, it is often said that the separation of powers precludes courts from making policy. They cannot determine what the ‘best’ decision is in a given situation. A common saying in this context is that courts can only ‘apply the law’. However, what is the law exactly in this case? But what is the law exactly in the case of a policy decision (i.e. a discretionary action)? Policy by definition entails a choice between several a priori permissible actions. Every judicial review of a government action that goes beyond the mere automatic execution of a legal rule thus constitutes policy review. As such, the separation of powers cannot meaningfully entail that courts cannot review policy decisions at all.

When there is no bright line rule dictating a specific action, government conduct can only be governed by open-ended standards. In Belgium and the Netherlands, this standard is (manifest) unreasonableness – called marginal review. Standards, however, only fully get their content after their application to a specific case: what is reasonable, depends on the circumstances of the case. Courts are not making policy merely because they give content to an open norm: in the case of standards, it is only in concreto and a posteriori that it becomes clear what the law is in the phrase ‘courts can only apply the law’.

A second reason commonly invoked is that the separation of powers mandates that ‘courts cannot take the government’s place’. But what does such a prohibition of substitution mean? First, it can signify that courts cannot substitute their own preferences about what is the best decision. In this sense, it is nothing more than restating that courts cannot make policy, as discussed above.

Unwarranted substitution can also arise when courts are confronted with a claim for reparation of damages (Dutch: schadeherstel). The question is then: can a court, after it has determined that a decision is (manifestly) unreasonable, tell the government which decision it should take instead? The answer is yes, if the court determines that every conceivable decision is manifestly unreasonable except for one. In this case, the court merely applies a marginal review of the decision, which is giving content to the standard of (manifest) unreasonableness. An action that was in abstracto and a priori legal turns out to be impermissible in concreto and a posteriori. As such, this has nothing to do with the separation of powers, but rather with the existence of a discretionary space and its review.

A third recurring justification is that separation of powers guides courts on how intensely they ought to review policy decisions. Specifically, it would mean that courts ought to show more restraint towards government decisions than towards decisions taken by a private actor. This is both questionable and misleading. Questionable because neither case law nor literature mentions that government actions are to be held to less scrutiny than private actors’ actions, for instance a decision of a corporate board of directors. Misleading because it is unclear how separation of powers provides courts with guidance to show more restraint. At most, the principle can serve as a red flag, warning courts to show more restraint if discretionary actions are involved. But this red flag is entailed by marginal review itself. Indeed, every policy review – regardless of who took the decision under review – should respect the de iure existence of a discretionary space.

The final reply is that the separation of powers constitutes the legal basis for judicial restraint. While this idea seems to have some traction, it is also the least convincing. It suffices to observe again that marginal review is not tied to government action as such, but to the existence of a de iure discretionary space. This occurs in both public and private law. Accordingly, when looking for a legal basis of marginal review, we need to look for a concept common to all areas in which policy review occurs. This quest, however, exceeds the scope of this post.

Why (not) Separation of Powers?

If separation of powers has no useful role in assessing judicial review of discretionary actions, why is this so? Legal authors often try to first capture the essence of the concept of separation of powers in order to then deductively infer specific guidelines for judges from this essence. This endeavor is, however, problematic.

First, because the concept is practical and evolutive: it is determined by how it is applied in practice, not how it is defined in theory. When we base ourselves on 250-300 years old literature to find the essence of the concept we are guilty of a historicist fallacy by conducting a modern hineininterpretierung of a concept created in a radically different time and spirit.

Second, the concept is not operational: we cannot deduce practical guidelines for judges in specific cases from an abstract theoretical definition of an essentially contested concept, without getting stuck in generalities. Rather than a micro-principle informing the actions of courts, separation of powers is a macro-principle informing the organization of our state institutions: judges need be independent, checks and balances between institutions are required, etc. A contemporary theory of the separation of powers is inductive, not deductive.

Although the societal debate concerning the legitimacy of judicial review of government policy will not fade anytime soon, this post and the book chapter on which it is based, stand as an invitation to all actors in the scientific debate to critically assess the use of separation of powers as a tool to describe the role of courts on a micro level.

Jan-Baptist Lemaire is writing a PhD on judicial review of discretionary actions (supervisor Bernard Tilleman) as PhD Fellow at FWO and affiliated to the Centre for Methodology of Law, KU Leuven. He is currently completing an LL.M. at Yale Law School in New Haven, Connecticut.

This blogpost is based on a book chapter to be published next year: J.B. Lemaire, “Een andere kijk op beleidstoetsing, duurzaamheid en de scheiding der machten” in B. Akkermans, B. Hoops and B. Verheye, Privaatrecht 2050. De weg naar ecologische duurzaamheid, Bruges, die Keure, 2022.


Jan-Baptist LEMAIRE, "Judicial review of government action and the separation of powers: please separate", Leuven Blog for Public Law, 22 October 2021, https://www.leuvenpubliclaw.com/judicial-review-of-government-action-and-the-separation-of-powers (geraadpleegd op 27 November 2021)

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One Reply to “Judicial review of government action and the separation of powers: please separate”

  1. I cannot say I fully agree with the opinion nor the arguments put forward by Jan-Baptist Lemaire. During my professional life I was fortunate enough to combine academic activities with extensive judicial experiences, mainly in the field of administrative law. It has taught me that judicial activism is an always present temptation, and separation of powers is a wall only insofar a judge will respect it, what most judges fortunately do, but not always. What is troublesome is that some far reaching judicial decisions rest only on very open, and therefore very vague, rules. I have no quarrel with judicial decisions that order public authorities to specific performances, when those performances have been laid down in specific rules adopted by the legislator. But open norms are not a good foundation. For instance, most judicial decisions that order public authorities to reduce emissions, rest only on article 3 of the ECHR (right to life), and that is a questionable basis at best. It imposes strict duties on public authorities, which limits severely their policy freedom to the detriment of other policy fields. It means the judge sets policy priorities, not the legislator. Furthermore, the judge fixes only a goal to be achieved, not the means. Of course, a judge is not equipped to formulate the means, but precisely that is a problem. The means inevitably will encroach upon other political domains, and inevitably will hit hardest the weakest members of the society. A rise in energy prices is good for the environment, but not for people with a limited income, regardless of the compensation measures the public authorities will take. Once vague norms have successfully be invoked in one area (the environment), they can and will be invoked and applied in other areas, like education, health care, transportation, etc.
    At some point there will be simply no room for discretionary policy anymore, and secondly, the best informed and best organized groups will be able to push their agenda to the top, and again to the detriment of other, weaker groups and individuals.
    The same is true for the criterium of “manifestly unreasonable” decisions. It has its place in the judicial arsenal. The fact is that nobody can define what is “manifestly unreasonable”, which means that a decision is manifestly unreasonable when a judge says so. Therefore, it must be applied very, very sparingly.
    That is not to say that judges have no role to play, but separation of power has to be taken seriously.

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