1. Is collective litigation anti-democratic?
In discussions about collective actions, a recurring concern is that its growth might be anti-democratic in the sense that it transfers excessive power to the judiciary and shifts political questions to the courts. Furthermore, there is a recent discussion on the ability of the state to get things done, and why the modern state often fails to deliver results that are helpful for citizens. This failure may have led to the rise of populist political parties that promise false “easy” solutions. Has the rise of collective litigation contributed to this perceived paralysis of the state, or is it something that could help defending and developing democratic values?
2. A very short empirical observation
Although more empirical research is needed, it is interesting to note the rather obvious correlation between the increasing number and development of collective litigation and the democratic and economic strength of countries like the USA, Canada, Australia, the UK, the Netherlands, and Scandinavian countries. As correlation does not equal causation, we do not know whether the development of collective litigation instruments is a good thing that helps the economy and society. It could also be the case that it is just a wasteful expense that can only be afforded by the rich countries in the world and that it may even have a detrimental effect on the economy and on society. This should be researched more in the future, but any negative economic or social effect from collective litigation is probably not very large, as it has not prevented the U.S., Australia, Canada, Denmark, Sweden or the Netherlands from becoming and remaining some of the richest nations on this planet.
3. Normative approaches in political theory supporting collective litigation
When we turn to a political theory evaluation of collective litigation, there are several approaches in the literature that see a positive role for collective litigation in a democracy: One of the oldest is the Florence Access to Justice project from the 1970s that was described by its authors as “studies in modern democracy.” Mauro Cappelletti and his team wanted not only to describe instruments of collective litigation, but also to support their development. They saw collective litigation as an emancipatory tool: In the age of “big business” and “big government”, Cappelletti argued for “big litigation” as a counterweight (Cappelletti 1989).
If we try to make a connection to political philosophy, Jürgen Habermas has certainly been the most relevant thinker in this area for the last fifty years. His sophisticated theory of deliberative democracy is based on his roots in discourse theory and argues that it is mainly an open public discourse that creates legitimacy for legislative decisions and for the rule of law in general. However, Habermas certainly realizes that the existing differences in power, education and social influence make a purely rational public discourse almost impossible. He therefore looks to certain procedures and procedural rights that can improve and enable a sufficient level and quality of public discourse in social reality. From this perspective, collective litigation instruments are compensatory in the sense that they aim to reduce power disparities and could enable people to really participate in legal-political discourse (Habermas 1992).
The American legal scholar Alexandra Lahav has made a similar, but much more litigation-specific argument (“In Praise of Litigation”, 2017). This work must be read as a reaction to the widespread public criticism against “too much” litigation in the United States. In her book, Lahav counters this criticism by highlighting the positive functions of litigation for democracy: Not only does litigation help in enforcing the law, but it also has information-revealing power by dragging facts and issues into the public light that would not get scrutiny otherwise. Furthermore, litigation enables people to participate in law-making procedures in the sense that litigation decides on how the law shall be interpreted and developed. Finally, Lahav highlights the principle of “equality before the law”: Although we all know that this principle is a counter-factual assumption, it is put to the test in litigation, where David can sue Goliath. Collective litigation can certainly strengthen the little guys’ position and thus contribute to more factual equality before the law.
4. The opponents’ arguments
- Separation of powers and judicial activism
The opponents of more collective litigation often claim that law-making is reserved for the legislative branch, and that the judiciary shall limit itself to the application of these norms as they are created by the legislative. In particular, “political” decisions are seen as the exclusive domain of the elected legislative bodies, and supposedly are not a suitable field for judges to decide.
This argument is weak on a theoretical level: There is no structural difference between legislative and judicial law-making. This is an old insight that goes back at least into the early 20th century when both the legal realists in the U.S. but also Hans Kelsen convincingly argued that adjudication is not structurally different from legislation: The realists showed that many legal norms are indeterminate and leave open an “interstitial” area, an open space between boundaries in which the judge can freely choose what he or she sees fit (Cardozo 1921).
The limits for the judge are set by law – be it statute or precedent. The legislator typically has a bigger room to manoeuvre, but must also act within limits, be it the constitution (if there is one) or (today) EU law. The difference between legislation and interpretation of the law in adjudication is not qualitative, but only quantitative in nature, as there are different boundaries (Kelsen 1960).
Note that it is completely up to the legislator to decide where to work with general clauses or other very open terminology, and where to go into more detail and create more specific rules that would narrow the “interstitial” margin for a judge’s decision. Furthermore, the legislator can always override or correct judge-made case law through legislative action. The case law made by judges creates only “conditional rules” (Calabresi 1982) that always remain subject to a revision or repeal by way of the democratic process.
- Improper motives by plaintiffs?
Another common critique is that collective litigation is only rarely driven by idealistic motives, but is often brought primarily for profit. This is true and can be seen in many U.S. class actions that are driven by entrepreneurial lawyers and in the growing use of third-party litigation financing in Europe. In this regard, collective litigation can contribute to a “litigation industry” that sees litigation as a financial investment. But is this necessarily a bad thing? I would argue that in a liberal democracy, the motive behind exercising one’s rights – and may it be pure greed for more money – is irrelevant if the function is socially beneficial. This principle is central to market economies but applies equally to the role of private law in such market economies: The essence of modern private law is that it allows individuals to assert legal rights regardless of ethical motivation or constraints (Luhmann 1970).
While there are many barriers in place against “abusive” collective litigation, the simple enforcement of rights therefore cannot be labelled as abusive, and in a market economy, there is nothing wrong with trying to make money. The law-enforcing function of litigation and its value for the rule of law does not depend on the plaintiffs’ motives.
- Kicking the dog when you mean the master
Finally, much of the criticism brought forward against the enforcement of laws through collective litigation is in fact directed against the underlying substantive laws themselves. But under the rule of law, even “silly laws” are to be enforced, even if opponents of these laws do not like it. In particular, the EU’s GDPR must be viewed critically with its excessive aim of regulating almost all human communication, and it is also not clear why data protection breaches should lead to the financial compensation of bad feelings when there are so many other much more severe areas in life where you get bad feelings but receive no money. The GDPR is not a good law, but it is the law. It can and should be changed through the legislative process – but to sabotage the enforcement of valid laws is not a tenable democratic position.
Therefore, collective litigation can have a positive effect on democratic deliberation: As we see a law enforced, we as a society can re-evaluate in public discourse whether we really want that kind of law or whether we want to change it in the democratic process. This is also the solution to the issue of government paralysis: Instead of criticizing the enforcement of law through litigation, it would be progressive and sound policy to re-evaluate which of the myriads of laws and regulations we really need, assess their value in view of their effects, and correct the substantive law accordingly.
(Photo: Max Harlynking)
