Chapter 9 - Debates Concerning Process-based Review and Neutrality, Hard Cases, Judicial Expertise, and Epistemic Uncertainties

Summary

INTRODUCTION

Courts face various challenges in fundamental rights adjudication. These may result from the issue at stake, for example, where cases concern morally sensitive matters, such as abortion, euthanasia, and assisted suicide, or where they relate to the allocation of limited resources, such as cases on a subsistence minimum and (social) housing policies. Challenges may also stem from uncertainties surrounding the facts of a case or the possible consequences of a judgment. For instance, epistemic uncertainties as to the facts, causes, and results may arise in fundamental rights cases relating to climate change, noise pollution, and health risks due to problematic working conditions. This chapter addresses the issue of how courts as guardians of fundamental rights address these challenges, and what role process-based review plays in this regard. In the words of Paul Yowell: ‘[d]o courts and judges have the institutional capacity needed to settle the kinds of morally and politically controversial issues that arise in constitutional rights cases?’

This chapter addresses Yowell's question from the perspective of what role there is for process-based review in addressing normative and epistemic difficulties. First, Section 9.2 addresses the issue of courts dealing with normative controversies in fundamental rights adjudication. It discusses whether process-based review may be a way for courts to decide on fundamental rights cases in a (relatively) neutral manner (Section 9.2.1) and avoid having to take a definitive normative decision in morally sensitive cases (Section 9.2.2). Secondly, Section 9.3 deals with the issue of judicial expertise in fundamental rights adjudication. On the one hand, courts may be said to be experts on process and therefore process-based review matches their capacities (Section 9.3.1). On the other hand, courts are generally held to lack expertise in using empirical reasoning in order to deal with epistemic uncertainties (Section 9.3.2). From this perspective, process-based review has been advanced as a means for courts to avoid empirical reasoning, and it has been argued that procedural reasoning may even strengthen the trend of evidence-based decision-making by legislative and administrative authorities. In the following sections arguments against the use of procedural reasoning are also discussed. Section 9.4 connects the various debates on normative and epistemic challenges and process-based review, and reflects on the discussed arguments and positions taken by lawyers, legal theorists, and philosophers. A brief conclusion to the chapter is provided in Section 9.5.