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Towards a framework for understanding constitutional deference 301
and the less appropriate the matter becomes for judicial resolution. As
Fuller recognised, concealed polycentric elements are probably present in
almost all problems resolved by adjudication ... It is a question of knowing
when the polycentric elements have become so significant and predominant
that the proper limits of adjudication have been reached. 45
This, in turn, will mean that courts tend to be reluctant to become
engaged in matters that they regard as sufficiently polycentric, and will
find them to be non-justiciable. As Fuller notes, however, a high degree of
polycentricity cannot be a bar to judicial resolution in itself, and there may
be instances where it is preferable for a court to engage in the resolution of
a polycentric matter where it cannot be adequately resolved through other
means. 46
In this discussion of Fuller’s work, the focus is on three important issues
implicated by the judicial resolution of polycentric disputes – issues which
are relevant for the determination of justiciability and the appropriate level of
deference to be applied by a court in a particular matter. The first issue is the
lack of evidence before, or lack of expertise within, a court to enable it to
predict accurately the consequences of its decisions. 47 Moreover, if parties
who may be adversely affected are not before the court – even if they could be
identified – it may not be practical for a judge to attempt to take all their
interests into account. When a court is confronted with having to decide a
complex, polycentric matter it should therefore, in Allison’s words, avoid
choosing to decide the matter in a way that results in a decision which
‘necessitates an appreciation of complex repercussions’; nor should it develop
the law where a similar appreciation of the repercussions is required. 48 It
will not, however, always be clear to the court whether a matter before it is
one which involves a complex, polycentric determination, precisely because
the evidence before it is limited to that which the parties place before it. For
Allison, Fuller’s concept of polycentricity therefore becomes too vague to
use as a principle of adjudication. 49 Allison also criticises Fuller for failing to
explain what the alternative to judicial resolution of polycentric matters is.
The other social institutions identified by Fuller (the legislature, mediation,
contract, and managerial decision making) are similarly not ideally suited to
deciding polycentric matters – although Fuller does argue that contract and
managerial direction are superior. Neither does Fuller adequately explain
when it would be preferable, as a matter of principle, for courts nevertheless
to engage in polycentric decision-making. 50 Thus, while Fuller’s concept of
45 Fuller (n 39 above) 398.
46
Fuller (n 39 above) 405 - 406. Allison notes that in his correspondence with Frank
Newman, Fuller accepted that in certain situations, decisions such as the desegregation
decisions of the 1950s were necessary, but that they place a ‘serious moral drain on the
integrity of adjudication’: Allison (n 44 above) 374.
47 Fuller (n 39 above) 401.
48 Allison (n 44 above) 370 - 371.
49
Allison (n 44 above) 372 - 373.
50 Fuller (n 39 above) 398 - 400; Allison (n 44 above) 373 - 374.