The case for keeping legal accountability detached from social justice

Various justifications can be offered in support of this detached relationship between legal accountability and social justice, and in particular of the limited role that courts play in English law in reviewing the substance of resource allo­cation decisions.^[1455] To start with, general agreement exists that politicians should play the leading role in deciding how to allocate resources.

Resource allocation decisions also often involve a complex balancing of vari­ous policy considerations which affect a wide diversity of parties. Doubts have been expressed about the ability of the legal process to handle such polycentric disputes in a just and effective manner.^[1457] Furthermore, very different views exist as to what social justice entails. If courts and tribunals are dragged too deeply into these debates it may, as Carol Harlow has argued, undermine the ‘very qualities of certainty, finality and especially independence for which the legal process is esteemed'.^[1458] It might also disrupt how public authorities currently deal with the complex issues of resource allocation in areas such as social secu­rity, health care, and public housing.

Taken together, all of these arguments support the idea that it would be foolish to rely on legal controls to give effect to a ‘total' vision of social justice, ie. a com­prehensive system of resource distribution that satisfies a particular philosophical ideal of group justice. They also suggest that caution is warranted before free rein is given to courts or other legal adjudicative bodies to interpret, apply and enforce compliance with a wide-ranging set of social policy principles. The reach and scope of legal accountability may have expanded greatly over the last few decades, but this does not mean that it can or should serve as a vehicle for remedying multiple forms of social injustice.

All this is relatively uncontroversial. Few jurisdictions expect their courts to play a leading role in reviewing resource allocation decisions. Many state constitu­tions now make socio-economic rights legally enforceable, including South Africa, Mexico, and Kenya. However, it is only perhaps in Brazil, Colombia, and India that the courts have come to play a significant role in supervizing how public resources are distributed, and in all three countries their enhanced role in this regard can be attributed in part to specific and unique factors.^[1461]

However, it is one thing to oppose extending legal controls to cover the whole terrain of social justice: it is another thing to limit the reach of legal accountabil­ity to such an extent that public authorities enjoy almost unfettered discretion when it comes to the substance of resource allocation decisions, as is currently the case in the UK. The fact that courts need to respect the primacy of political decision-making and the limits of their technical expertise does not necessarily mean that judges should defer to the political and bureaucratic decisions in the field of resource allocation in each and every case.

After all, courts are regularly asked to determine other types of disputes relating to our ‘shared social life' (to return to Walzer's phrase) which affect existing resource allocation arrangements and have the potential to alter public sector priorities: this is particularly true when it comes to the provisions of tort law, anti-discrimination legislation, and the right of access to the courts protected by art 6 ECHR and the common law.^[1462] In other words, in performing their ‘corrective’ role, courts often adjudicate disputes in a manner that affects the distribution of resources: no clear demarcation line exists between corrective and distributive justice, and legal adju­dication regularly blends elements of the latter in with the former.

Similarly, the fact that resource allocation decisions often have a polycentric dimension does not make them intrinsically unsuitable for judicial determination. As Jeff King has persuasively argued, polycentricity is a problem that arises across a wide range of legal issues, with tort and tax cases again serving as examples.^[1463] Insofar as it presents a challenge to the legitimacy of judicial decision-making, it does so in respect of particular factual scenarios where good reasons exist to be concerned about the impact on unrepresented parties. However, this type of situ­ation is not unique to resource allocation decision-making: for example, a case like McDonald is arguably no more polycentric than many breach of duty claims brought against public authorities in tort.

Furthermore, while there are pressing reasons to oppose judicial intervention in the ‘macro’ realm of budgetary policy, the situation is different with more ‘micro’ disputes where the financial and resource implications at issue are relatively pre­dictable and containable. Individual decisions can of course establish precedents that are applicable in other cases: however, in many cases, the specific nature of the facts at issue will limit the extent to which they can have a destabilizing effect on other resource allocation decisions, and the courts can use the flexible nature of the judicial review process to minimize any negative fall-out from a particular decision.^[1464] McDonald again serves as a good example: the specific nature of its facts is likely to limit its precedential value, and the same would probably be true had the outcome gone the other way.

In other words, good reasons exist to be cautious about extending the reach of legal accountability too far into the realm of social justice.^[1465] However, the bound­ary between corrective and distributive justice is porous. A clear distinction cannot always be made between resource allocation decisions and other types of public decision-making which are subject to close scrutiny by the courts. Furthermore, the various reasons why courts should defer to public authority decisions involving the distribution of resources do not apply with equal force in every situation.

As a result, the assumption that courts should avoid interfering with how public resources are distributed should be seen as more of a rule of thumb than a hard and fast requirement. However, English public law by and large treats the substance of public authority resource allocation decisions as a judicial no-go zone. In so doing, it may unduly truncate the reach of legal accountability, especially when it comes to resource allocations decisions which have a grave effect on individual wellbeing.

F.