Working paper: Judging without Railings (Davies and Henderson 2022)
Judging Without Railings: An Ethic of Responsible Judicial Decision-making for Future Generations
Davies and Henderson (working paper on SRRN; Expected to be published mid 2022)
In this article Davies and Henderson propose a new ethic of judicial decision-making in cases where future generations are an affected, yet unheard party. Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system. Judiciaries around the world often turn to process-based review when dealing with such uncertainties. In process-based review, judges focus on ensuring decision-making procedures are fair and inclusive of all relevant interests, instead of on substantive policy choices. However, in the case of climate litigation, it appears that where judges wish to use process-based review to avoid substantive judgments in the face of uncertainty, they cannot escape uncertainty about who to include and exclude from the processes.
We argue that judges engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process by judicial decision. This ethics of responsibility focuses on the moment before and after the judicial decision, calling the judge’s attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly.
Davies, Laura M.J. and Henderson, Laura M., Judging Without Railings: An Ethic of Responsible Judicial Decision-making for Future Generations (January 29, 2022). WORKING PAPER Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4021115